<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 1-9818
--------------
ALLIANCE CAPITAL
MANAGEMENT L.P.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
-----------------------
DELAWARE 13-3434400
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1345 AVENUE OF THE AMERICAS
NEW YORK, N.Y. 10105
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (212) 969-1000
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NAME OF EACH EXCHANGE ON
TITLE OF CLASS WHICH REGISTERED
-------------- ------------------------
UNITS REPRESENTING ASSIGNMENTS OF NEW YORK STOCK EXCHANGE
BENEFICIAL OWNERSHIP OF LIMITED
PARTNERSHIP INTERESTS
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of the Units representing assignments of
beneficial ownership of limited partnership interests held by non-affiliates of
the registrant as of March 1, 1999 was approximately $1,750,009,257.
The number of Units representing assignments of beneficial ownership of
limited partnership interests outstanding as of March 1, 1999 was 170,567,163
Units.
DOCUMENTS INCORPORATED BY REFERENCE
Certain pages of the Alliance Capital Management L.P. 1998 Annual
Report to Unitholders are incorporated by reference in Part II of this Form
10-K.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
GLOSSARY OF CERTAIN DEFINED TERMS
"Partnership" refers to Alliance Capital Management L.P., a Delaware
limited partnership, and its subsidiaries and, where appropriate, to its
predecessor ACMC and its subsidiaries.
"ACMC" refers to ACMC, Inc., a wholly-owned subsidiary of Equitable.
"Alliance" refers to Alliance Capital Management Corporation, a
wholly-owned subsidiary of Equitable, and, where appropriate, to ACMC, its
predecessor.
"AXA" refers to AXA, a company organized under the laws of France.
"ECI" refers to The Equitable Companies Incorporated.
"ECMC" refers to Equitable Capital Management Corporation, a
wholly-owned subsidiary of Equitable.
"Equitable" refers to The Equitable Life Assurance Society of the
United States, a wholly-owned subsidiary of ECI, and its subsidiaries other
than the Partnership and its subsidiaries.
"General Partner" refers to Alliance in its capacity as general
partner of the Partnership, and, where appropriate, to ACMC, its predecessor,
in its capacity as general partner of the Partnership.
"Investment Advisers Act" refers to the Investment Advisers Act of
1940.
"Investment Company Act" refers to the Investment Company Act of
1940.
"Units" refer to units representing assignments of beneficial
ownership of limited partnership interests in the Partnership.
PART I
ITEM 1. BUSINESS
GENERAL
The Partnership was formed in 1987 to succeed to the business of ACMC
which began providing investment management services in 1971. On April 21, 1988
the business and substantially all of the operating assets of ACMC were conveyed
to the Partnership in exchange for a 1% general partnership interest in the
Partnership and approximately 55% of the outstanding Units. In December 1991
ACMC transferred its 1% general partnership interest in the Partnership to
Alliance.
On February 19, 1998 the Partnership declared a two for one Unit split
payable to Unitholders of record on March 11, 1998. No adjustments have been
made to the number of Units outstanding or per Unit amounts except in Item 5,
Item 6, Item 7, Item 8 and Item 11.
As of March 1, 1999 AXA, ECI, Equitable and certain subsidiaries of
Equitable were the beneficial owners of 96,613,481 Units or approximately 56.6%
of the issued and outstanding Units. As of March 1, 1999 AXA and its
subsidiaries owned approximately 58.4% of the issued and outstanding shares of
the common stock of ECI. ECI is a public company with shares traded on the New
York Stock Exchange, Inc. ("NYSE"). ECI owns all of the shares of Equitable. For
insurance regulatory purposes all shares of common stock of ECI beneficially
owned by AXA have been deposited into a voting trust. See "Item 12. Security
Ownership of Certain Beneficial Owners and Management".
1
<PAGE>
AXA, a French company, is the holding company for an international
group of insurance and related financial services companies. AXA's insurance
operations include activities in life insurance, property and casualty insurance
and reinsurance. The insurance operations are diverse geographically with
activities principally in Western Europe, North America, the Asia/Pacific area,
and, to a lesser extent, in Africa and South America. AXA is also engaged in
asset management, investment banking, securities trading, brokerage, real estate
and other financial services activities principally in the United States, as
well as in Western Europe and the Asia/Pacific area.
The Partnership, one of the nation's largest investment advisers,
provides diversified investment management services to institutional clients and
high net-worth individuals and, through various investment vehicles, to
individual investors.
The Partnership's separately managed accounts consist primarily of the
active management of equity and fixed income accounts for institutional
investors and high net-worth individuals. The Partnership's institutional
clients include corporate and public employee pension funds, the general and
separate accounts of Equitable and its insurance company subsidiary, endowments,
foundations, and other domestic and foreign institutions. The Partnership's
mutual funds management services, which developed as a diversification of its
institutional investment management business, consist of the management,
distribution and servicing of mutual funds and cash management products,
including money market funds and deposit accounts.
The following tables provide a summary of assets under management and
associated revenues of the Partnership:
Assets Under Management
-----------------------
(in millions)
<TABLE>
<CAPTION>
December 31,
--------------------------------------------------------------------
1994 1995 1996 1997 1998
<S> <C> <C> <C> <C> <C>
Separately Managed Accounts (1)(4)...... $81,030 $97,275 $119,507 $133,706 $168,121
Mutual Funds Management (4):
Alliance Mutual Funds................. 20,595 23,134 27,624 40,376 60,722
Variable Products .................... 8,501 12,292 17,070 23,830 31,364
Cash Management Services (2).......... 9,153 13,820 18,591 20,742 26,452
------- ------- -------- -------- --------
Total................................... $119,279 $146,521 $182,792 $218,654 $286,659
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
Revenues
--------------
(in thousands)
Years Ended December 31,
---------------------------------------------------------------------
1994 1995 1996 1997 1998
Separately Managed Accounts (1)......... $212,500 $232,132 $280,909 $322,850 $ 373,018
Mutual Funds Management:
Alliance Mutual Funds................. 292,040 277,815 327,769 432,520 674,234
Variable Products (3)................. 21,980 29,632 44,967 67,805 93,174
Cash Management Services (2).......... 69,514 91,135 127,265 146,152 174,829
Other.................................... 4,918 8,541 7,607 6,009 8,801
------- ------- -------- -------- ---------
Total.................................... $600,952 $639,255 $788,517 $975,336 $1,324,056
-------- -------- -------- -------- ----------
-------- -------- -------- -------- ----------
</TABLE>
(1) Includes the general and separate accounts of Equitable and its
insurance company subsidiary.
(2) Includes money market deposit accounts brokered by the Partnership
for which no investment management services are performed.
2
<PAGE>
(3) Net of certain fees paid to Equitable for services rendered by
Equitable in marketing the variable annuity insurance and variable
life products for which The Hudson River Trust is the funding
vehicle.
(4) Assets under management exclude certain non-discretionary advisory
relationships and reflect 100% of the assets managed by
unconsolidated joint venture subsidiaries and affiliates.
SEPARATELY MANAGED ACCOUNTS
As of December 31, 1996, 1997 and 1998 separately managed accounts for
institutional investors and high net-worth individuals (other than investment
companies and deposit accounts) represented approximately 65%, 61% and 59%,
respectively, of total assets under management by the Partnership. The fees
earned from the management of these accounts represented approximately 36%, 33%
and 28% of the Partnership's revenues for 1996, 1997 and 1998, respectively.
<TABLE>
<CAPTION>
Separately Managed Accounts Assets Under Management(1)
---------------------------------------------------
(in millions)
December 31,
----------------------------------------------------------------
1994 1995 1996 1997 1998
<S> <C> <C> <C> <C> <C>
Equity & Balanced:
Domestic......................... $30,457 $42,706 $51,292 $61,259 $87,032
International & Global........... 3,828 3,854 10,903 7,883 7,370
Fixed Income:
Domestic......................... 31,470 32,553 36,042 39,079 41,911
International & Global........... 2,602 1,891 2,381 2,759 4,030
Passive:
Domestic......................... 9,645 12,787 15,478 19,860 23,050
International & Global........... 3,028 3,484 3,411 2,866 4,728
------- ------- -------- -------- --------
Total.............................. $81,030 $97,275 $119,507 $133,706 $168,121
------- ------- -------- -------- --------
------- ------- -------- -------- --------
(1) Includes 100% of the assets managed by unconsolidated joint venture
subsidiary and affiliated companies of $432 million at December 31, 1998
and $203 million at December 31, 1997.
Revenues From Separately Managed Accounts Management
----------------------------------------------------
(in thousands)
Years Ended December 31,
----------------------------------------------------------------
1994 1995 1996 1997 1998
Investment Services:
Equity & Balanced:
Domestic......................... $108,645 $132,802 $157,511 $184,200 $238,063
International & Global........... 10,867 10,373 32,453 30,192 16,371
Fixed Income:
Domestic......................... 70,217 67,102 65,449 80,600 89,286
International & Global........... 5,180 3,784 5,392 7,007 7,968
Passive:
Domestic......................... 6,016 5,919 8,015 9,187 9,911
International & Global........... 4,052 3,870 3,612 3,034 2,997
-------- -------- -------- -------- --------
204,977 223,850 272,432 314,220 364,596
Service and Other Fees............. 7,523 8,282 8,477 8,630 8,422
-------- -------- -------- -------- --------
Total.............................. $212,500 $232,132 $280,909 $322,850 $373,018
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
</TABLE>
3
<PAGE>
INVESTMENT MANAGEMENT SERVICES
The Partnership's separately managed accounts consist primarily of the
active management of equity accounts, balanced (equity and fixed income)
accounts and fixed income accounts for institutional investors and high
net-worth individuals. The Partnership also provides active management for
international (non-U.S.) and global (including U.S.) equity, balanced and fixed
income portfolios, asset allocation portfolios, venture capital portfolios,
investment partnership portfolios known as hedge funds and portfolios that
invest in real estate investment trusts. The Partnership provides "passive"
management services for equity, fixed income and international accounts. As of
December 31, 1998 the Partnership's accounts were managed by 135 portfolio
managers with an average of 16 years of experience in the industry and 10 years
of experience with the Partnership.
EQUITY AND BALANCED ACCOUNTS. The Partnership's equity and balanced
accounts contributed approximately 24%, 22% and 19% of the Partnership's total
revenues for 1996, 1997 and 1998, respectively. Assets under management relating
to active equity and balanced accounts grew from approximately $32.8 billion as
of December 31, 1993 to approximately $94.4 billion as of December 31, 1998.
The Partnership has had a distinct and consistent style of equity
investing. The Partnership does not emphasize market timing as an investment
tool but instead emphasizes long-term trends and objectives, generally remaining
fully invested. The Partnership's equity strategy is to invest in the securities
of companies experiencing growing earnings momentum which are known as growth
stocks. The result of these investment characteristics is that the Partnership's
client portfolios tend to have, as compared to the average of companies
comprising the Standard & Poor's Index of 500 Stocks ("S&P 500"), a greater
market price volatility, a lower average yield and a higher average
price-earnings ratio.
The Partnership's principal method of securities evaluation is through
fundamental analysis undertaken by its internal staff of full-time research
analysts, supplemented by research undertaken by the Partnership's portfolio
managers. The Partnership holds frequent investment strategy meetings in which
senior management, portfolio managers and research analysts discuss investment
strategy. The Partnership's portfolio managers construct and maintain portfolios
that adhere to each client's guidelines and conform to the Partnership's current
investment strategy.
The Partnership's balanced accounts consist of an equity component and
a fixed income component. Typically, from 50% to 75% of a balanced account is
managed in the same manner as a separate equity account, while the remaining
fixed income component is oriented toward capital preservation and income
generation.
FIXED INCOME ACCOUNTS. The Partnership's fixed income accounts
contributed approximately 9%, 9% and 7% of the Partnership's total revenues for
1996, 1997 and 1998, respectively. Assets under management relating to active
fixed income accounts increased from approximately $30.8 billion as of December
31, 1993 to approximately $45.9 billion as of December 31, 1998.
The Partnership's fixed income management services include conventional
actively managed bond portfolios in which portfolio maturity structures, market
sector concentrations and other characteristics are actively shifted in
anticipation of market changes. Fixed income management services also include
managing portfolios which invest in foreign government securities and other
foreign debt securities. Sector concentrations and other portfolio
characteristics are heavily committed to areas that the Partnership's portfolio
managers believe have the best investment values. The Partnership also manages
portfolios that are limited to specialized areas of the fixed income markets,
such as mortgage-backed securities and high-yield bonds.
PASSIVE MANAGEMENT. The Partnership's strategy in passive portfolio
management is to provide customized portfolios to meet specialized client needs,
such as a portfolio designed to replicate a particular index. The Partnership
offers domestic and international indexation strategies, such as portfolios
designed to match the performance characteristics of the S&P 500 and the Morgan
Stanley Capital International Indices and enhanced indexation strategies
designed to add incremental returns to a benchmark. The Partnership also offers
a variety of structured fixed income portfolio applications, including
immunization (designed to produce a compound rate of return over a specified
time, irrespective of interest rate movements), dedication (designed to produce
specific cash flows at specific times to fund known liabilities) and indexation
(designed to replicate the return of a specified market index or benchmark). As
of December 31, 1998 the Partnership managed
4
<PAGE>
approximately $27.8 billion in passive portfolios.
PRIVATE INVESTING SERVICES. In 1996 the Partnership acquired a minority
interest in Albion Alliance LLC ("Albion Alliance") which is its primary vehicle
for providing global investing services in respect of private and illiquid
securities to institutions and high net-worth individuals.
Alliance Corporate Finance Group Incorporated ("ACFG"), a wholly-owned
subsidiary of the Partnership, was formed in 1993 when the business of ECMC was
acquired to manage investments in private mezzanine financings and private
investment limited partnerships. Private mezzanine financings are investments in
the subordinated debt and/or preferred stock portions of leveraged transactions
(such as leveraged buy-outs and leveraged recapitalizations). Such investments
are usually coupled with a contingent interest component or investment in an
equity participation, which provide the potential for capital appreciation.
Since Albion Alliance is now the Partnership's primary vehicle for providing
these types of services, it is not expected that ACFG will manage any new
private investments other than for Equitable and its subsidiaries.
ACFG manages two private mezzanine investment funds designed for
institutional investors, with an aggregate of approximately $199.4 million under
management as of December 31, 1998. As of that date Equitable and its insurance
company subsidiary had investments of approximately $40.0 million in these
funds.
STRUCTURED PRODUCTS. The Partnership manages 24 structured products
with an aggregate of $8.2 billion in assets as of December 31, 1998. $5.4
billion of these assets are included in mutual fund assets under management and
$2.8 billion are included in separately managed assets under management as of
December 31, 1998. Structured products consist of securities, typically multiple
classes of senior and subordinated debt obligations together with an equity
component, issued by a special purpose company. An actively or passively managed
portfolio of equity or fixed income securities or other financial products
generally backs such securities. A majority of the Partnership's structured
product assets are based on a short duration fixed income strategy, including
the five "Pegasus" transactions which, as of December 31, 1998, had an aggregate
of $4.1 billion in assets under management. The Partnership also manages two
collateralized bond obligation funds whose pools of collateral debt securities
consist primarily of privately-placed, fixed rate corporate debt securities
acquired from Equitable and its affiliates. As of December 31, 1998 these funds
had approximately $148.0 million under management. As of that date ECI and its
insurance company subsidiaries had investments of approximately $140.0 million
in these funds.
HEDGE FUNDS. As of December 31, 1998, the Partnership managed hedge
funds which had approximately $1.2 billion in assets under management and
separately managed hedge accounts which had approximately $0.9 billion in assets
under management in four distinct strategies. The Partnership's hedge funds are
privately placed domestic and offshore investment vehicles. The portfolios of
the hedge funds consist of various types of securities, including equities,
domestic and foreign government and other debt securities, convertible
securities, warrants, options and futures. The hedge funds take short positions,
including the purchase of put options on securities, market indices or futures.
The hedge funds employ the use of leverage through securities exposure and
borrowings.
CLIENTS
The approximately 1,889 separately managed accounts for institutions
and high net-worth individuals (other than investment companies) for which the
Partnership acts as investment manager include corporate employee benefit plans,
public employee retirement systems, the general and separate accounts of
Equitable and its insurance company subsidiary, endowments, foundations, foreign
governments, multi-employer pension plans and financial and other institutions.
The general and separate accounts of Equitable and its insurance
company subsidiary, the management of which were transferred to the Partnership
in 1993 in connection with the acquisition of the business and substantially all
of the assets of ECMC, are the Partnership's largest institutional clients. As
of December 31, 1998 AXA and the general and separate accounts, including
investments made by these accounts in The Hudson River Trust (See "Individual
Investor Services - The Hudson River Trust"), represented approximately 22%, 26%
and 27% of total assets under management by the Partnership at December 31,
1998, 1997 and 1996, respectively, and approximately 11%, 14% and 13% of the
Partnership's total revenues for 1998, 1997 and 1996, respectively.
As of December 31, 1998 corporate employee benefit plan accounts
represented approximately 12% of total assets
5
<PAGE>
under management by the Partnership. Assets under management for other
tax-exempt accounts, including public employee benefit funds organized by
government agencies and municipalities, endowments, foundations and
multi-employer employee benefit plans, represented approximately 33% of total
assets under management as of December 31, 1998.
The following table lists the Partnership's ten largest institutional
clients, ranked in order of size of total assets under management as of December
31, 1998. Since the Partnership's fee schedules vary based on the type of
account, the table does not reflect the ten largest revenue generating clients.
<TABLE>
<CAPTION>
Client or Sponsoring Employer Type of Account
----------------------------- ---------------
<S> <C>
AXA, Equitable and their subsidiaries............. Equity, Fixed Income,
Passive, Global Equity,
Global Fixed Income
North Carolina Retirement System.................. Passive Equity, U.S.
Equity, Global Equity
Foreign Government Central Bank................... Equity, Global Equity,
Fixed Income,
Global Fixed Income
State Board of Administration of Florida......... Equity, Fixed Income
New York State Common Retirement System .......... Equity
Frank Russell Trust............................... U.S. Equity
BellSouth Corporation............................. Passive Equity
Foreign Government Central Bank................... U.S. Fixed Income,
Global Fixed Income,
U.S. Equity, Global
Equity, Asian Equity
Nuclear Electric Insurance Ltd.................... Passive
Sun America....................................... Equity
</TABLE>
These institutional clients accounted for approximately 25% of the
Partnership's total assets under management at December 31, 1998 and
approximately 9% of the Partnership's total revenues for the year ended December
31, 1998 (35% and 15%, respectively, if the investments by the separate accounts
of Equitable in The Hudson River Trust were included). No single institutional
client other than Equitable and its insurance company subsidiary accounted for
more than approximately 1% of the Partnership's total revenues for the year
ended December 31, 1998. AXA and the general and separate accounts of Equitable
and their insurance company subsidiaries accounted for approximately 12% of the
Partnership's total assets under management at December 31, 1998 and
approximately 6% of the Partnership's total revenues for the year ended December
31, 1998 (22% and 11%, respectively, if the investments by the separate accounts
of Equitable in The Hudson River Trust were included).
Since its inception, the Partnership has experienced periods when it
gained significant numbers of new accounts or amounts of assets under management
and periods when it lost significant accounts or assets under management. These
fluctuations result from, among other things, the relative attractiveness of the
Partnership's investment style or level of performance under prevailing market
conditions, changes in the investment patterns of clients that result in a shift
in assets under management and other circumstances such as changes in the
management or control of a client.
INVESTMENT MANAGEMENT AGREEMENTS AND FEES
The Partnership's separately managed accounts are managed pursuant to a
written investment management agreement between the client and the Partnership,
which usually is terminable at any time or upon relatively short notice by
either party. In general, the Partnership's contracts may not be assigned
without the consent of the client.
In providing investment management services to institutional clients,
the Partnership is principally compensated on the basis of fees calculated as a
percentage of assets under management. Fees are generally billed quarterly and
are calculated on the value of an account at the beginning or end of a quarter
or on the average of such values during the quarter. As a result, fluctuations
in the amount or value of assets under management are reflected in revenues from
management fees within two calendar quarters.
Management fees paid on equity and balanced accounts are generally
charged in accordance with a fee schedule that ranges from 0.75% (for the first
$10 million in assets) to 0.25% (for assets over $60 million) per annum of
assets under
6
<PAGE>
management. Fees for the management of fixed income portfolios
generally are charged in accordance with lower fee schedules, while fees for
passive equity portfolios typically are even lower. Fees for the management of
hedge funds are higher than the fees charged for equity and balanced accounts
and also provide for the payment of performance fees or carried interests to the
Partnership. With respect to approximately 5% of assets under management, the
Partnership charges performance-based fees, which consist of a relatively low
base fee plus an additional fee if investment performance for the account
exceeds certain benchmarks. No assurance can be given that such fee arrangements
will not become more common in the investment management industry. Utilization
of such fee arrangements by the Partnership on a broader basis could create
greater fluctuations in the Partnership's revenues.
ACFG's fees for corporate finance activities generally involve the
payment of a base management fee ranging from 0.10% to .50% of assets under
management per annum. In some cases ACFG receives performance fees generally
equivalent to 20% of gains in excess of a specified hurdle rate.
In connection with the investment advisory services provided to the
general and separate accounts of Equitable and its insurance company
subsidiary the Partnership provides ancillary accounting, valuation,
reporting, treasury and other services. Equitable and its insurance company
subsidiary compensate the Partnership for such services. See "Item 13.
Certain Relationships and Related Transactions".
MARKETING
The Partnership's institutional products are marketed by marketing
specialists who solicit business for the entire range of the Partnership's
institutional account management services. Marketing specialists are dedicated
to corporate and insurance plans as well as public retirement systems,
multi-employer pension plans and the hedge fund marketplace. The Partnership's
institutional marketing structure supports its commitment to provide
comprehensive and timely client service. A client service representative is
assigned to each institutional account. This individual is available to meet
with the client as often as necessary and attends client meetings with the
portfolio manager.
MUTUAL FUNDS MANAGEMENT
The Partnership (i) manages and sponsors a broad range of open-end and
closed-end mutual funds other than The Hudson River Trust and markets wrap fee
accounts ("Alliance Mutual Funds"), (ii) manages The Hudson River Trust which is
one of the funding vehicles for variable annuity insurance and variable life
insurance products offered by Equitable and its insurance company subsidiary,
and other funds which serve as funding vehicles for variable annuity insurance
and variable life insurance products offered by other insurance companies
("Variable Products"), (iii) provides cash management services (money market
funds and federally insured deposit accounts) that are marketed to individual
investors through broker-dealers, banks, insurance companies and other financial
intermediaries, (iv) manages and sponsors certain structured products, and (v)
manages and sponsors certain hedge funds. The net assets comprising the Alliance
Mutual Funds, Variable Products, money market funds and deposit accounts,
structured products and hedge funds on December 31, 1998 amounted to
approximately $118.6 billion. The assets of the Alliance Mutual Funds, Variable
Products, money market funds, structured products and hedge funds are managed by
the same investment professionals who manage the Partnership's accounts of
institutional investors and high net-worth individuals.
7
<PAGE>
<TABLE>
<CAPTION>
Revenues From Mutual Funds Management
-------------------------------------
(in thousands)
Years Ended December 31,
---------------------------------------------------------------------
1994 1995 1996 1997 1998
<S> <C> <C> <C> <C> <C>
Alliance Mutual Funds (1):
Investment Services.............. $147,661 $147,036 $173,260 $235,613 $389,839
Distribution Revenues............ 120,896 107,012 128,917 167,321 241,948
Shareholder Servicing Fees....... 16,054 16,558 19,156 22,957 36,230
Other Revenues................... 7,429 7,209 6,436 6,629 6,217
-------- -------- -------- -------- --------
292,040 277,815 327,769 432,520 674,234
-------- -------- -------- -------- --------
Variable Products:
Investment Services (2).......... 21,490 29,051 43,901 66,376 91,506
Distribution Revenues............ 91 203 551 772 730
Shareholder Servicing Fees....... 49 12 15 16 18
Other Revenues................... 350 366 500 641 920
-------- -------- -------- -------- --------
21,980 29,632 44,967 67,805 93,174
-------- -------- -------- -------- --------
Cash Management Services:
Investment Services (3).......... 42,018 56,642 74,441 82,770 107,051
Distribution Revenues............ 18,104 23,328 39,481 48,758 59,168
Shareholder Servicing Fees....... 8,398 9,951 12,085 13,354 7,227
Other Revenues................... 994 1,214 1,258 1,270 1,383
-------- -------- -------- -------- --------
69,514 91,135 127,265 146,152 174,829
-------- -------- -------- -------- --------
Total.............................. $383,534 $398,582 $500,001 $646,477 $942,237
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
</TABLE>
(1) Includes fees received by the Partnership in connection with
certain structured products, hedge funds and wrap fee accounts.
(2) Net of certain fees paid to Equitable for services rendered by
Equitable in marketing the variable annuity insurance and
variable life products for which The Hudson River Trust is the
funding vehicle.
(3) Includes fees received by the Partnership in connection with its
distribution of money market deposit accounts for which no
investment management services are provided.
8
<PAGE>
ALLIANCE MUTUAL FUNDS
The Partnership has been managing mutual funds since 1971. Since then,
the Partnership has sponsored open-end load mutual funds and closed-end mutual
funds (i) registered as investment companies under the Investment Company Act
("U.S. Funds"), and (ii) which are not registered under the Investment Company
Act and which are not publicly offered to United States persons ("Offshore
Funds"). On December 31, 1998 net assets in the Alliance Mutual Funds totaled
approximately $60.7 billion.
<TABLE>
<CAPTION>
Net Assets as
of December 31, 1998
--------------------
Type of Alliance Mutual Funds (in millions)
- -----------------------------
<S> <C>
U.S. Funds - Open-End:
Equity and Balanced........................... $24,684.0
Taxable Fixed Income.......................... 7,071.6
Tax Exempt Fixed Income....................... 3,055.6
Offshore Funds (Open and Closed-End):
Taxable Fixed Income.......................... 13,287.9
Equity and Balanced........................... 2,674.9
Wrap Fee Programs............................... 5,022.3
U.S. Funds - Closed-End......................... 3,534.5
Joint Venture Subsidiaries and Affiliates (1) 1,391.5
---------
Total........................................... $60,722.3
---------
---------
</TABLE>
(1) Assets under management exclude certain non-discretionary
advisory relationships and reflect 100% of the assets managed
by unconsolidated joint venture subsidiaries and affiliates.
9
<PAGE>
VARIABLE PRODUCTS
The Hudson River Trust is one of the funding vehicles for the variable
annuity and variable life insurance products offered by Equitable and its
insurance company subsidiary. The Alliance Variable Products Series Fund is a
funding vehicle for variable annuity and variable life insurance products
offered by other unaffiliated insurance companies. On December 31, 1998 the net
assets of the portfolios of the Variable Products totaled approximately $31.4
billion:
<TABLE>
<CAPTION>
Net Assets as
of December 31, 1998
--------------------
(in millions)
<S> <C>
Hudson River Trust:
Common Stock Portfolio.................. $12,896.1
Aggressive Stock Portfolio.............. 4,500.8
Growth Investors Portfolio.............. 2,055.1
Balanced Portfolio...................... 1,936.4
Equity Index Portfolio.................. 1,690.6
Global Portfolio........................ 1,408.2
Money Market Portfolio.................. 1,110.0
Growth & Income Portfolio............... 998.3
High Yield Portfolio.................... 612.4
Conservative Investors Portfolio........ 388.1
Quality Bond Portfolio.................. 322.4
Small Cap Growth Portfolio.............. 310.6
International Portfolio................. 212.3
Intermediate Government Portfolio....... 184.3
---------
28,625.6
Alliance Variable Products Series Fund....... 2,738.4
---------
Total........................................ $31,364.0
---------
---------
</TABLE>
DISTRIBUTION. The Alliance Mutual Funds are distributed to individual
investors through broker-dealers, insurance sales representatives, banks,
registered investment advisers, financial planners and other financial
intermediaries. Alliance Fund Distributors, Inc. ("AFD"), a registered
broker-dealer and a wholly-owned subsidiary of the Partnership, serves as the
principal underwriter and distributor of the U.S. Funds and serves as a placing
or distribution agent for most of the Offshore Funds. There are 175 sales
representatives who devote their time exclusively to promoting the sale of
shares of Alliance Mutual Funds by financial intermediaries.
The Partnership maintains a mutual fund distribution system (the
"System") which permits open-end Alliance Mutual Funds to offer investors
various options for the purchase of mutual fund shares, including the purchase
of Front-End Load Shares and Back-End Load Shares. The Front-End Load Shares are
subject to a conventional front-end sales charge paid by investors to AFD at the
time of sale. AFD in turn compensates the financial intermediaries distributing
the funds from the front-end sales charge paid by investors. For Back-End Load
Shares, investors do not pay a front-end sales charge although, if there are
redemptions before the expiration of the minimum holding period (which ranges
from one year to four years), investors pay a contingent deferred sales charge
("CDSC") to AFD. While AFD is obligated to compensate the financial
intermediaries at the time of the purchase of Back-End Load Shares, it receives
higher ongoing distribution fees from the funds. Payments made to financial
intermediaries in connection with the sale of Back-End Load Shares under the
System, net of CDSC received, reduced cash flow from operations by approximately
$232.5 million and $150.3 million during 1998 and 1997, respectively. Management
of the Partnership believes AFD will recover the payments made to financial
intermediaries for the sale of Back-End Load Shares from the higher distribution
fees and CDSC it receives over periods not exceeding 5 1/2 years.
The rules of the National Association of Securities Dealers, Inc.
effectively limit the aggregate of all front-end, deferred and asset-based sales
charges paid to AFD with respect to any class of its shares by each open-end
U.S. Fund to 6.25% of cumulative gross sales of shares of that class, plus
interest at the prime rate plus 1% per annum.
10
<PAGE>
The open-end U.S. Funds and Offshore Funds have entered into agreements
with AFD under which AFD is paid a distribution services fee. The Partnership
uses borrowings and its own resources to finance distribution of open-end
Alliance Mutual Fund shares.
The selling and distribution agreements between AFD and the financial
intermediaries that distribute Alliance Mutual Funds are terminable by either
party upon notice (generally of not more than sixty days) and do not obligate
the financial intermediary to sell any specific amount of fund shares. A small
amount of mutual fund sales is made directly by AFD, in which case AFD retains
the entire sales charge.
During 1998 the ten financial intermediaries responsible for the
largest volume of sales of open-end U.S. Funds and Variable Products were
responsible for 64% of such sales. EQ Financial Consultants, Inc. ("EQ
Financial"), a wholly-owned subsidiary of Equitable that utilizes members of
Equitable's insurance agency sales force as its registered representatives, has
entered into a selected dealer agreement with AFD and since 1986 has been
responsible for a significant portion of total sales of shares of open-end U.S.
Funds and Offshore Funds (of 13%, 7% and 5% in 1996, 1997 and 1998). EQ
Financial is under no obligation to sell a specific amount of fund shares and
also sells shares of mutual funds sponsored by organizations unaffiliated with
Equitable.
Subsidiaries of Merrill Lynch & Co., Inc. (collectively "Merrill
Lynch") were responsible for approximately 20%, 24% and 26% of open-end Alliance
Mutual Fund sales in 1996, 1997 and 1998, respectively. Citigroup Inc.
("Citigroup"), parent company of Salomon Smith Barney (formerly Smith Barney
Inc.), was responsible for approximately 9% of open-end Alliance Mutual Fund
sales in 1996, 7% in 1997 and 6% in 1998. Neither Merrill Lynch nor Citigroup is
under any obligation to sell a specific amount of Alliance Mutual Fund shares
and each also sells shares of mutual funds that it sponsors and which are
sponsored by unaffiliated organizations.
No dealer or agent other than EQ Financial, Merrill Lynch and Citigroup
has in any year since 1993 accounted for more than 10% of the sales of open-end
Alliance Mutual Funds.
Many of the financial intermediaries that sell shares of Alliance
Mutual Funds also offer shares of funds not managed by the Partnership and
frequently offer shares of funds managed by their own affiliates.
Based on industry sales data reported by the Investment Company
Institute (January 1999), the Partnership's market share in the U.S. mutual fund
industry is 1.18% of total industry assets and the Partnership accounted for
1.30% of total open-end industry sales in the U.S. during 1998. While the
performance of the Alliance Mutual Funds is a factor in the sale of their
shares, there are other factors contributing to success in the mutual fund
management business that are not as important in the institutional account
management business. These factors include the level and quality of shareholder
services (see "Shareholder and Administration Services" below) and the amounts
and types of distribution assistance and administrative services payments. The
Partnership believes that its compensation programs with financial
intermediaries are competitive with others in the industry.
Under current interpretations of the Glass-Steagall Act and other laws
and regulations governing depository institutions, banks and certain of their
affiliates generally are permitted to act as agent for their customers in
connection with the purchase of mutual fund shares and to receive as
compensation a portion of the sales charges paid with respect to such purchases.
During 1998 banks and their affiliates accounted for approximately 5% of the
sales of shares of open-end U.S. Funds and Variable Products.
INVESTMENT MANAGEMENT AGREEMENTS AND FEES. Investment management fees
from the Alliance Mutual Funds, the Hudson River Trust and the Variable Products
vary between .16% and 1.65% per annum of average net assets. As certain of the
U.S. Funds have grown, fee schedules have been revised to provide lower
incremental fees above certain levels. Fees paid by the U.S. Funds and The
Hudson River Trust are fixed annually by negotiation between the Partnership and
the board of directors or trustees of each U.S. Fund and The Hudson River Trust,
including a majority of the disinterested directors or trustees. Changes in fees
must be approved by the shareholders of each U.S. Fund and The Hudson River
Trust. In general, the investment management agreements with the U.S. Funds and
The Hudson River Trust provide for termination at any time upon 60 days' notice.
11
<PAGE>
Under each investment management agreement with a U.S. Fund, the
Partnership provides the U.S. Fund with investment management services, office
space and order placement facilities and pays all compensation of directors or
trustees and officers of the U.S. Fund who are affiliated persons of the
Partnership. Each U.S. Fund pays all of its other expenses. If the expenses of a
U.S. Fund exceed an expense limit established under the securities laws of any
state in which shares of that U.S. Fund are qualified for sale or as prescribed
in the U.S. Fund's investment management agreement, the Partnership absorbs such
excess through a reduction in the investment management fee. Currently, the
Partnership believes that California and South Dakota are the only states to
impose such a limit. The expense ratios for the U.S. Funds during their most
recent fiscal year ranged from .67% to 4.49%. In connection with newly organized
U.S. Funds, the Partnership may also agree to reduce its fee or bear certain
expenses to limit expenses during an initial period of operations.
CASH MANAGEMENT SERVICES
The Partnership provides cash management services to individual
investors through a product line comprising 21 money market fund portfolios,
including one offshore money market fund domiciled in Cayman and three types of
brokered money market deposit accounts. Net assets in these products as of
December 31, 1998 totaled approximately $26.5 billion.
<TABLE>
<CAPTION>
Net Assets
as of
December
31, 1998
-------------
(in millions)
<S> <C>
Money Market Funds:
Alliance Capital Reserves (two portfolios).......... $10,910.7
Alliance Government Reserves (two portfolios)....... 7,173.9
ACM Institutional Reserves (five portfolios)........ 3,854.3
Alliance Municipal Trust (eight portfolios)......... 3,147.9
Alliance Money Market Fund (three portfolios)....... 785.9
ACM International Reserves (one portfolio).......... 58.9
Money Market Deposit Accounts (three products).......... 505.7
Joint Venture Subsidiaries and Affiliates (1)........... 14.8
---------
Total.................................................... $26,452.1
---------
---------
</TABLE>
(1) Assets under management exclude certain non-discretionary advisory
relationships and reflect 100% of the assets managed by
unconsolidated joint venture subsidiaries and affiliates.
The Partnership also offers a managed assets program, which provides
customers of participating financial intermediaries with a Visa card, access to
automated teller machines and check writing privileges. The program is linked to
the customer's chosen Alliance money market fund. The program serves to enhance
relationships with financial intermediaries and to attract and retain
investments in the Alliance money market funds, as well as to generate fee
income.
Under its investment management agreement with each money market fund,
the Partnership is paid an investment management fee equal to 0.50% per annum of
the fund's average net assets except for ACM Institutional Reserves which pays a
fee between 0.20% and 0.45% of its average net assets. In the case of certain
money market funds, the fee is payable at lesser rates with respect to average
net assets in excess of $1.25 billion. For distribution and account maintenance
services rendered in connection with the sale of money market deposit accounts,
the Partnership receives fees from the participating banks that are based on
outstanding account balances. Because the money market deposit account programs
involve no investment management functions to be performed by the Partnership,
the Partnership's costs of maintaining the account programs are less, on a
relative basis, than its costs of managing the money market funds.
On December 31, 1998 more than 99% of the assets invested in the
Partnership's cash management programs were attributable to regional
broker-dealers and other financial intermediaries, with the remainder coming
directly from the public. On December 31, 1998 more than 500 financial
intermediaries offered the Partnership's cash management services. The
Partnership's money market fund market share (not including deposit products),
as computed based on market data reported by
12
<PAGE>
the Investment Company Institute (December 1998), has increased from 1.31% of
total money market fund industry assets at the end of 1993 to 1.95% at
December 31, 1998.
The Partnership makes payments to financial intermediaries for
distribution assistance and shareholder servicing and administration. The
Partnership's money market funds pay fees to the Partnership at annual rates of
up to 0.25% of average daily net assets pursuant to "Rule 12b-1" distribution
plans except for Alliance Money Market Fund which pays a fee of up to 0.45% of
its average daily net assets. Such payments are supplemented by the Partnership
in making payments to financial intermediaries under the distribution assistance
and shareholder servicing and administration program. During 1998 such
supplemental payments totaled approximately $58.0 million ($49.0 million in
1997). There are 7 employees of the Partnership who devote their time
exclusively to marketing the Partnership's cash management services.
A principal risk to the Partnership's cash management services business
is the acquisition of its participating financial intermediaries by companies
that are competitors or that plan to enter the cash management services
business. As of December 31, 1998 the five largest participating financial
intermediaries were responsible for assets aggregating approximately $21.7
billion, or 82% of the cash management services total.
Many of the financial intermediaries whose customers utilize the
Partnership's cash management services are broker-dealers whose customer
accounts are carried, and whose securities transactions are cleared and settled,
by the Pershing Division ("Pershing") of Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ Securities Corporation"), a subsidiary of ECI. Pursuant to an
agreement between Pershing and the Partnership, Pershing recommends that certain
of its correspondent firms use of the Partnership's money market funds and other
cash management products. As of December 31, 1998 DLJ Securities Corporation and
these Pershing correspondents were responsible for approximately $18.2 billion
or 69% of the Partnership's total cash management assets. Pershing may terminate
its agreement with the Partnership on 180 days' notice. If the agreement were
terminated, Pershing would be under no obligation to recommend or in any way
assist in the sale of the Partnership's cash management products and would be
free to recommend or assist in the sale of competitive products.
The Partnership's money market funds are investment companies
registered under the Investment Company Act and are managed under the
supervision of boards of directors or trustees, which include disinterested
directors or trustees who must approve investment management agreements and
certain other matters. The investment management agreements between the money
market funds and the Partnership provide for an expense limitation of 1% per
annum or less of average daily net assets. See "Mutual Funds Management -
Investment Management Agreements and Fees".
SHAREHOLDER AND ADMINISTRATION SERVICES
Alliance Fund Services, Inc. ("AFS"), a wholly-owned subsidiary of the
Partnership, provides registrar, dividend disbursing and transfer agency related
services for each U.S. Fund and provides servicing for each U.S. Fund's
shareholder accounts. As of December 31, 1998 AFS employed 301 people. AFS
operates out of offices in Secaucus, New Jersey, and San Antonio, Texas. Under
each servicing agreement AFS receives a monthly fee. Each servicing agreement
must be approved annually by the relevant U.S. Fund's board of directors or
trustees, including a majority of the disinterested directors or trustees, and
may be terminated by either party without penalty upon 60 days' notice.
Most U.S. Funds utilize Partnership personnel to perform legal,
clerical and accounting services not required to be provided by the Partnership.
Payments by a U.S. Fund for these services must be specifically approved in
advance by the U.S. Fund's board of directors or trustees. Currently, the
Partnership and AFS are accruing revenues for providing clerical and accounting
services to the U.S. Funds and these closed-end funds at the rate of
approximately $8.6 million per year.
ACM Fund Services S.A. ("ACMFS"), a wholly-owned subsidiary of the
Partnership, is the registrar and transfer agent of substantially all of the
Offshore Funds. As of December 31, 1998 ACMFS employed 18 people. ACMFS operates
out of offices in Luxembourg and receives a monthly fee for its registrar and
transfer agency services. Each agreement between ACMFS and an Offshore Fund may
be terminated by either party upon 60 days' notice.
The Partnership expects to continue to devote substantial resources to
shareholder servicing because of its importance in competing for assets invested
in mutual funds and cash management services.
13
<PAGE>
YEAR 2000
Many computer systems and applications that process transactions use
two digit date fields for the year of a transaction, rather than the full
four digits. If these systems are not modified and replaced, transactions
occurring after 1999 may be processed as year "1900", which could result in
processing inaccuracies and inoperability at or after the Year 2000. The
Partnership utilizes a number of computer systems and applications that it
either has developed internally or licensed from third-party suppliers. In
addition, the Partnership is dependent on third-party suppliers for certain
systems applications and for the electronic receipt of information critical
to its business.
The Year 2000 issue is a high priority for the Partnership. During
1997, the Partnership began a formal Year 2000 initiative, which
established a structured and coordinated process to deal with the Year 2000
issue. As part of its initiative, the Partnership established a Year
2000 project office to manage the Year 2000 initiative focusing on both
information technology and non-information technology systems. The Year
2000 project office meets periodically with the Audit Committee of the
Board of Directors and executive management to review the status of the Year
2000 efforts. The Partnership has also retained the services of a number
of consulting firms which have expertise in advising and assisting with
regard to Year 2000 issues.
By June 30, 1998 the Partnership had completed its inventory and
assessment of its domestic and international computer systems and
applications, identified mission critical systems (those systems where loss
of their function would result in an immediate stoppage or significant
impairment to core business units) and nonmission critical systems and
determined which of these systems is not Year 2000 compliant. All
third-party suppliers of mission critical computer systems and
applications have been contacted to verify whether their systems and
applications will be Year 2000 compliant and their responses are being
evaluated. Substantially all of those contacted have responded and
approximately 76% have informed the Partnership that their systems and
applications are or will be Year 2000 compliant. Those who have not
responded have been contacted a second time. The Partnership estimates
that this process will be completed by the first quarter of 1999. The
same process is being performed for nonmission critical systems with
estimated completion by the second quarter of 1999.
The Partnership has remediated, replaced or retired most of its
noncompliant mission critical systems and applications. The Partnership
expects that the remediation phase for all mission critical systems will
be complete by February 28, 1999 with the exception of one portfolio
accounting system, which will be replaced by a Year 2000 compliant system
by August 31, 1999. The same process will be performed for nonmission
critical systems and is estimated to be completed by the second quarter of
1999.
After each system has been remediated, it is tested with 19XX dates
to determine if it still performs its intended business function
correctly. Next, each system undergoes a simulation test using dates
occurring after December 31, 1999. Inclusive of the replacement and
retirement of some of its systems, the Partnership has completed these
testing phases for approximately 88% of mission critical systems and
approximately 75% of nonmission critical systems. Integrated systems
tests will then be conducted to verify that the systems will continue to
work together. Full integration testing of all mission critical and
nonmission critical systems and testing of interfaces with third-party
suppliers will begin in the first quarter of 1999 and will continue
throughout 1999.
The Partnership is in the process of inventorying, evaluating and
testing its technical infrastructure and corporate facilities and expects
them to be fully operable in the Year 2000.
The Partnership has deferred certain other planned information
technology projects until after the Year 2000 initiative is completed.
Such delay is not expected to have a material adverse effect on the
Partnership's financial condition or results of operations.
The Partnership, with the assistance of a consulting firm, is
developing formal Year 2000 specific contingency plans to address
situations where mission critical and nonmission critical systems are not
remediated as planned by the Partnership or third parties. These plans will
be completed by June 30, 1999.
The current cost estimate of the Year 2000 initiative ranges from
approximately $40 million to $45 million. These costs consist principally
of modification costs and costs to develop formal Year 2000 specific
contingency plans. These costs, most of which will be expensed as incurred,
will be funded out of cash flow from the Partnership's operations. Through
14
<PAGE>
December 31, 1998, the Partnership had incurred approximately $22 million of
costs related to the Year 2000 initiative. At this time, management of the
Partnership believes that the costs associated with resolving the Year
2000 issue will not have a material adverse effect on the Partnership's
results of operations, liquidity or capital resources.
There are many risks associated with Year 2000 issues, including
the risk that the Partnership's computer systems and applications will
not operate as intended and that the systems and applications of third
parties will not be Year 2000 compliant. Likewise, there can be no
assurance the compliance schedules outlined above will be met or that the
actual costs incurred will not exceed the current cost estimate.
Should the Partnership's significant computer systems and applications or
the systems of its important third-party suppliers be unable to process date
sensitive information accurately after 1999, the Partnership may be
unable to conduct its normal business operations and to provide its
clients with the required services. In addition, the Partnership may
incur unanticipated expenses, regulatory actions, and legal liabilities.
The Partnership cannot determine which risks, if any, are most reasonably
likely to occur nor the effects of any particular failure to be Year 2000
compliant.
Readers are cautioned that forward-looking statements contained
in "YEAR 2000" should be read in conjunction with the disclosure set
forth under "Forward-Looking Statements". To the fullest extent permitted
by law, the foregoing Year 2000 discussion is a "Year 2000 Readiness
Disclosure" within the meaning of The Year 2000 Information and Readiness
Disclosure Act, 15 U.S.C. Sec. 1 (1998).
COMPETITION
The financial services industry is highly competitive and new entrants
are continually attracted to it. No one or small number of competitors is
dominant in the industry. The Partnership is subject to substantial competition
in all aspects of its business. Pension fund, institutional and corporate assets
are managed by investment management firms, broker-dealers, banks and insurance
companies. Many of these financial institutions have substantially greater
resources than the Partnership. The Partnership competes with other providers of
institutional investment products and services primarily on the basis of the
range of investment products offered, the investment performance of such
products and the services provided to clients. Based on an annual survey
conducted by PENSIONS & INVESTMENTS, as of December 31, 1997 the Partnership was
ranked 12th out of 703 managers based on tax-exempt assets under management, 8th
out of the 25 largest managers of international index assets, 7th out of the 25
largest managers of domestic equity index funds and 14th out of the 25 largest
domestic bond index managers.
Many of the firms competing with the Partnership for institutional
clients also offer mutual fund shares and cash management services to individual
investors. Competitiveness in this area is chiefly a function of the range of
mutual funds and cash management services offered, investment performance,
quality in servicing customer accounts and the capacity to provide financial
incentives to financial intermediaries through distribution assistance and
administrative services payments funded by "Rule 12b-1" distribution plans and
the investment adviser's own resources.
CUSTODY AND BROKERAGE
Neither the Partnership nor its subsidiaries maintains custody of
client funds or securities, which is maintained by client-designated banks,
trust companies, brokerage firms or other custodians. Custody of the assets of
Alliance Mutual Funds, The Hudson River Trust and money market funds is
maintained by custodian banks and central securities depositories.
The Partnership generally has the discretion to select the brokers or
dealers to be utilized to execute transactions for client accounts.
Broker-dealers affiliated with ECI and Equitable effect transactions for client
accounts only if the use of the broker-dealers has been specifically authorized
or directed by the client.
REGULATION
The Partnership, Albion Alliance, ACFG and Alliance are investment
advisers registered under the Investment Advisers Act. Each U.S. Fund is
registered with the Securities and Exchange Commission ("SEC") under the
Investment Company Act and the shares of most U.S. Funds are qualified for
sale in all states in the United States and the District of Columbia, except
for U.S. Funds offered only to residents of a particular state. AFS is
registered with the SEC as a transfer agent and AFD is registered with the
SEC as a broker-dealer. AFD is subject to minimum net capital requirements
15
<PAGE>
($6.4 million at December 31, 1998) imposed by the SEC on registered
broker-dealers and had aggregate regulatory net capital of $15.7 million
at December 31, 1998.
The relationships of Equitable and its insurance company subsidiary
with the Partnership are subject to applicable provisions of the New York
Insurance Law and regulations. Certain of the investment advisory agreements and
ancillary administrative service agreements between Equitable and its insurance
company subsidiary and the Partnership are subject to disapproval by the New
York Superintendent of Insurance within a prescribed notice period. Under the
New York Insurance Law and regulations, the terms of these agreements are to be
fair and equitable, charges or fees for services performed are to be reasonable,
and certain other standards must be met. Fees must be determined either with
reference to fees charged to other clients for similar services or, in certain
cases, which include the ancillary service agreements, based on cost
reimbursement.
The Partnership's assets under management and revenues derived from the
general accounts of Equitable and its insurance company subsidiary are directly
affected by the investment policies for the general accounts. Among the numerous
factors influencing general account investment policies are regulatory factors,
such as (i) laws and regulations that require diversification of the investment
portfolios and limit the amount of investments in certain investment categories
such as below investment grade fixed maturities, equity real estate and equity
interests, (ii) statutory investment valuation reserves, and (iii) risk-based
capital guidelines for life insurance companies approved by the National
Association of Insurance Commissioners. These policies have recently resulted in
the shifting of general account assets managed by the Partnership into
categories with lower management fees.
All aspects of the Partnership's business are subject to various
federal and state laws and regulations and to the laws in the foreign countries
in which the Partnership's subsidiaries conduct business. These laws and
regulations are primarily intended to benefit clients and Alliance Mutual Fund
shareholders and generally grant supervisory agencies broad administrative
powers, including the power to limit or restrict the carrying on of business for
failure to comply with such laws and regulations. In such event, the possible
sanctions which may be imposed include the suspension of individual employees,
limitations on engaging in business for specific periods, the revocation of the
registration as an investment adviser, censures and fines.
EMPLOYEES
As of December 31, 1998 the Partnership and its subsidiaries employed
2,075 employees, including 257 investment professionals, of whom 135 are
portfolio managers, 107 are research analysts and 15 are order placement
specialists. The average period of employment of these professionals with the
Partnership is approximately 7 years and their average investment experience is
approximately 13 years. The Partnership considers its employee relations to be
good.
SERVICE MARKS
The Partnership has registered a number of service marks with the
U.S. Patent and Trademark Office, including an "A" design logo and the
combination of such logo and the words "Alliance" and "Alliance Capital".
Each of these service marks was registered in 1986.
ITEM 2. PROPERTIES
The Partnership's principal executive offices at 1345 Avenue of the
Americas, New York, New York are occupied pursuant to a lease which extends
until 2016. The Partnership currently occupies approximately 399,000 square feet
at this location. The Partnership also occupies approximately 110,900 square
feet at 135 West 50th Street, New York, New York under leases expiring in 2016.
The Partnership also occupies approximately 16,800 square feet at 709
Westchester Avenue, White Plains, New York under leases expiring in 2000 and
2004, respectively. The Partnership and its subsidiaries, AFD and AFS, occupy
approximately 125,000 square feet of space in Secaucus, New Jersey pursuant to a
lease which extends until 2016 and approximately 92,100 square feet of space in
San Antonio, Texas pursuant to a lease which extends until 2009.
The Partnership also leases space in San Francisco, California;
Chicago, Illinois; Greenwich, Connecticut; Minneapolis, Minnesota; and
Beechwood, Ohio, and its subsidiaries and affiliates lease space in London,
England; Paris, France; Tokyo, Japan; Sydney, Australia; Toronto, Canada;
Luxembourg; Singapore; Manama, Bahrain; Mumbai, New Delhi,
16
<PAGE>
Bangalore and Pune, India; Johannesburg, South Africa; and Istanbul, Turkey.
Joint venture subsidiaries and affiliates of the Partnership have offices in
Vienna, Austria; Sao Paolo, Brazil; Hong Kong; Chennai, India; Seoul,
Korea; Warsaw, Poland; Moscow, Russia; and Cairo, Egypt.
ITEM 3. LEGAL PROCEEDINGS
On July 25, 1995, a Consolidated and Supplemental Class Action
Complaint ("Original Complaint") was filed against the Alliance North American
Government Income Trust, Inc. (the "Fund"), the Partnership and certain other
defendants affiliated with the Partnership alleging violations of federal
securities laws, fraud and breach of fiduciary duty in connection with the
Fund's investments in Mexican and Argentine securities. On September 26, 1996,
the United States District Court for the Southern District of New York granted
the defendants' motion to dismiss all counts of the Original Complaint. On
October 29, 1997, the United States Court of Appeals for the Second Circuit
affirmed that decision.
On October 29, 1996, plaintiffs filed a motion for leave to file an
amended complaint. The principal allegations of the amended complaint are
that (i) the Fund failed to hedge against currency risk despite
representations that it would do so, (ii) the Fund did not properly disclose
that it planned to invest in mortgage-backed derivative securities, and (iii)
two advertisements used by the Fund misrepresented the risks of investing in
the Fund. On October 15, 1998, the United States Court of Appeals for the
Second Circuit issued an order granting plaintiffs' motion to file an amended
complaint alleging that the Fund misrepresented its ability to hedge against
currency risk and denying plaintiffs' motion to file an amended complaint
alleging that the Fund did not properly disclose that it planned to invest in
mortgage-backed derivative securities and that certain advertisements used by
the Fund misrepresented the risks of investing in the Fund.
The Partnership believes that the allegations in the amended complaint
are without merit and intends to vigorously defend against this action. While
the ultimate outcome of this matter cannot be determined at this time,
management of the Partnership does not expect that it will have a material
adverse effect on the Partnership's results of operations or financial
condition.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matter was submitted to security holders during the fourth quarter
of 1998.
17
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
MARKET FOR THE UNITS
The Units are traded on the New York Stock Exchange ("NYSE"). The high
and low sale prices on the NYSE during each quarter of the Partnership's two
most recent fiscal years were as follows:
<TABLE>
<CAPTION>
1998 High Low
---- ---- ----
<S> <C> <C>
First Quarter 27 7/8 18 13/16
Second Quarter 29 23 7/8
Third Quarter 28 19 5/8
Fourth Quarter 27 1/2 19 3/4
<CAPTION>
1997 High Low
---- ---- ----
<S> <C> <C>
First Quarter 15 1/8 12
Second Quarter 14 15/16 12
Third Quarter 18 13/16 14 1/2
Fourth Quarter 19 15/16 15 23/32
</TABLE>
On February 19, 1998, the Partnership declared a two for one Unit
split payable to Unitholders of record on March 11, 1998. The high and low
sale prices above have been adjusted to reflect the Unit split to the extent
necessary.
On March 1, 1999 the closing price of the Units on the NYSE was
$25.50 per Unit. As of March 1,1999 there were approximately 1,722
Unitholders of record.
18
<PAGE>
CASH DISTRIBUTIONS
The Partnership distributes on a quarterly basis all of its Available
Cash Flow (as defined in the Partnership Agreement). During its two most recent
fiscal years the Partnership made the following distributions of Available Cash
Flow:
<TABLE>
<CAPTION>
Quarter During 1998 With
Respect to Which a Cash
Distribution Was Paid from Amount of Cash
Available Cash Flow for Distribution Per
that Quarter Unit Payment Date
- --------------------------- ---------------- -----------------
<S> <C> <C>
First Quarter $ 0.38 May 18, 1998
Second Quarter 0.42 August 18, 1998
Third Quarter 0.39 November 23, 1998
Fourth Quarter 0.43 February 23, 1999
------
$1.62
------
------
<CAPTION>
Quarter During 1997 With
Respect to Which a Cash
Distribution Was Paid from Amount of Cash
Available Cash Flow for Distribution Per
that Quarter Unit Payment Date
- ----------------------------- ------------------ ------------
<S> <C> <C>
First Quarter $ 0.30 May 20, 1997
Second Quarter 0.32 August 21, 1997
Third Quarter 0.37 November 28, 1997
Fourth Quarter 0.41 February 24, 1998
------
$1.40
------
------
</TABLE>
On February 19, 1998 the Partnership declared a two for one Unit
split payable to Unitholders of record on March 11, 1998. The cash
distribution per Unit amounts above have been adjusted to reflect the Unit
split to the extent necessary.
ITEM 6. SELECTED FINANCIAL DATA
The Selected Consolidated Financial Data which appears on page 43 of
the Alliance Capital Management L.P. 1998 Annual Report to Unitholders is
incorporated by reference in this Annual Report on Form 10-K.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
Management's Discussion and Analysis of Financial Condition and Results
of Operations which appears on pages 44 through 58 of the Alliance Capital
Management L.P. 1998 Annual Report to Unitholders is incorporated by reference
in this Annual Report on Form 10-K.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The quantitative and qualitative disclosures about market risk
contained in Management's Discussion and Analysis of Financial Condition and
Results of Operations on pages 56 and 57 of the Alliance Capital Management
L.P. 1998 Annual Report to Unitholders are incorporated by reference in this
Annual Report on Form 10-K.
19
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Consolidated Financial Statements of Alliance Capital Management
L.P. and subsidiaries and the report thereon by KPMG LLP which appear on pages
59 through 80 of the Alliance Capital Management L.P. 1998 Annual Report to
Unitholders are incorporated by reference in this Annual Report on Form 10-K.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
GENERAL PARTNER
The Partnership's activities are managed and controlled by Alliance as
General Partner and Unitholders do not have any rights to manage or control the
Partnership. The General Partner has agreed that it will conduct no active
business other than managing the Partnership, although it may make certain
investments for its own account.
The General Partner does not receive any compensation from the
Partnership for services rendered to the Partnership as General Partner. The
General Partner holds a 1% general partnership interest in the Partnership. As
of March 1, 1999 Equitable, ACMC and ECMC, affiliates of the General Partner,
held 96,613,481 Units.
The General Partner is reimbursed by the Partnership for all expenses
incurred by it in carrying out its activities as General Partner, including
compensation paid by the General Partner to its directors and officers (to the
extent such persons are not compensated directly as employees of the
Partnership) and the cost of directors and officers liability insurance obtained
by the General Partner. The General Partner was not reimbursed for any such
expenses in 1998 except for directors' fees and directors and officers liability
insurance.
20
<PAGE>
DIRECTORS AND EXECUTIVE OFFICERS OF THE GENERAL PARTNER
The directors and executive officers of the General Partner are as
follows:
<TABLE>
<CAPTION>
Name Age Position
- ---- --- --------
<S> <C> <C>
Dave H. Williams.............. 66 Chairman of the Board and Director
Luis Javier Bastida........... 53 Director
Donald H. Brydon.............. 53 Director
Bruce W. Calvert.............. 52 Director, Vice Chairman and Chief
Executive Officer
John D. Carifa................ 54 Director, President and Chief
Operating Officer
Henri de Castries............. 44 Director
Kevin C. Dolan................ 45 Director
Denis Duverne................. 46 Director
Alfred Harrison............... 61 Director and Vice Chairman
Herve Hatt.................... 34 Director
Michael Hegarty............... 54 Director
Benjamin D. Holloway.......... 74 Director
Edward D. Miller.............. 58 Director
Peter D. Noris................ 43 Director
Frank Savage.................. 60 Director
Stanley B. Tulin.............. 49 Director
Reba W. Williams.............. 62 Director
Robert B. Zoellick............ 45 Director
David R. Brewer, Jr........... 53 Senior Vice President and General Counsel
Robert H. Joseph, Jr.......... 51 Senior Vice President and Chief
Financial Officer
</TABLE>
Mr. Williams joined Alliance in 1977 and has been the Chairman
of the Board since that time. He was elected a Director of Equitable on
March 21, 1991 and was elected to the ECI Board of Directors in May of
1992. He is also a Senior Executive Vice President of AXA. AXA, ECI and
Equitable are parents of the Partnership. Mr. Williams is the husband of
Mrs. Reba W. Williams, a Director of Alliance.
Mr. Bastida was elected a Director of Alliance in February 1995. He is
Chief Financial Officer and a member of the Executive Committee of Banco Bilbao
Vizcaya, S.A., ("BBV"). Mr. Bastida has been with BBV since 1976. Previous to
that date he worked for General Electric. He is Chairman of Finanzia, the
Specialized Finance subsidiary of BBV and of Canal International Holding; and a
Director of Privanza, the Private Bank of the same group.
Mr. Brydon was elected a Director of Alliance in May 1997. He is
Chairman and Chief Executive Officer of AXA Investment Managers S.A.
Mr. Brydon was formerly Barclays Group's Deputy Chief Executive of BZW,
the investment banking division of Barclays Plc., and was a member of the
Executive Committee of Barclays. Before joining BZW, Mr. Brydon was the
Chief Executive and Chairman of Barclays de Zoete Wedd Investment
Management Ltd. (BZWIM) and had served in various executive capacities
within the Barclays organization including Barclays Investment
Management Ltd. and Barclays Bank. Mr. Brydon serves as director of
Allied Domecq Plc., Nycomed Amersham Plc., Edinburgh UK Index Trust
Plc. and Edinburgh Inca Trust. He also serves as a member of the
Executive Committee of the UK's Institutional Fund Managers Association.
In addition, Mr. Brydon serves as Advisor of British Aerospace Pension
Fund Investment Management Ltd. and as Regulatory Officer of IMRO. AXA
Investment Managers S.A. is a subsidiary of AXA, a parent of the Partnership.
Mr. Calvert joined Alliance in 1973 as an equity portfolio manager and
was elected Chief Executive Officer on January 6, 1999. He served as Chief
Investment Officer from May 3, 1993 until January 6, 1999. He was elected Vice
Chairman on May 3, 1993. From 1986 to 1993 he was an Executive Vice President
and from 1981 to 1986 he was a Senior Vice President. He was elected a Director
of Alliance in 1992.
21
<PAGE>
Mr. Carifa joined Alliance in 1971 and was elected President and Chief
Operating Officer on May 3, 1993. He was the Chief Financial Officer from 1973
until 1994. He was an Executive Vice President from 1986 to 1993 and he was a
Senior Vice President from 1980 to 1986. He was elected a Director of Alliance
in 1992.
Mr. de Castries was elected a Director of Alliance in October
1993. He has been Senior Executive Vice President Financial Services and
Life Insurance Activities of AXA in the United States, Germany, the
United Kingdom and Benelux since 1996. Prior thereto, he was Executive
Vice President Financial Services and Life Insurance Activities of AXA
from 1993 to 1996, General Secretary of AXA from 1991 to 1993 and Central
Director of Finances of AXA from 1989 to 1991. Mr. de Castries is also a
Director or Officer of various subsidiaries and affiliates of the AXA
Group and a Director of ECI, Equitable and Donaldson Lufkin & Jenrette,
Inc. ("DLJ"). Mr. de Castries was elected Vice Chairman of ECI on
February 14, 1996 and was elected Chairman of ECI, effective April 1,
1998. AXA, ECI and Equitable are parents of the Partnership. DLJ is a
subsidiary of ECI.
Mr. Dolan was elected a Director of Alliance in May 1995.
He is Chief Executive Officer of AXA Investment Managers Paris, a
subsidiary of AXA. Mr. Dolan has been with AXA since 1993. From 1983 to
1993 Mr. Dolan was Deputy General Manager of BFCE. AXA is a parent of the
Partnership.
Mr. Duverne was elected a Director of Alliance in February 1996.
He has been Senior Vice President -International Life of AXA since 1995.
Prior to that Mr. Duverne was a member of the Executive Committee in
charge of Operations of Banque Colbert from 1992 to 1995. Mr. Duverne
was Secretary General of Compagnie Financiere IBI from 1991 to 1992.
Mr. Duverne worked for the French Ministry of Finance serving as
Deputy Assistant Secretary for Tax Policy from 1988 to 1991 and director of
the Corporate Taxes Department from 1986 to 1988. He is also a Director of
various subsidiaries of the AXA Group. Mr. Duverne is also a Director of
DLJ and Equitable. AXA and Equitable are parents of the Partnership. DLJ
and Equitable are subsidiaries of ECI.
Mr. Harrison joined Alliance in 1978 and was elected Vice
Chairman on May 3, 1993. Mr. Harrison is in charge of the Partnership's
Minneapolis office and is a senior portfolio manager. He was an
Executive Vice President from 1986 to 1993 and a Senior Vice President
from 1978 to 1986. He was elected a Director of Alliance in 1992.
Mr. Hatt was elected a Director of Alliance in May 1998. He has been
Senior Vice President of AXA since March 1998. From 1992 to 1998 he was a senior
engagement manager with McKinsey & Company, the management consultants, in
London and in Paris.
Mr. Hegarty was elected a Director of Alliance in May 1998. He has been
Director and Vice Chairman of ECI since April 1998 and Chief Operating Officer
since February 1998. He was Senior Executive Vice President of ECI from January
1998 to April 1998. From 1996 to 1997 he was Vice Chairman of Chase Manhattan
Corporation. He has also been a Director and President of Equitable since
January 1998 and Chief Operating Officer since February 1998. Prior thereto, he
was Vice Chairman (1995-1996) and Senior Executive Vice President (1991-1995) of
Chemical Bank, which merged with Chase in 1996. Mr. Hegarty is also a director
of DLJ. ECI and Equitable are parents of the Partnership. DLJ is a subsidiary of
ECI.
Mr. Holloway was elected a Director of Alliance in November 1987.
He is a consultant to The Continental Companies. From September 1988
until his retirement in March 1990, Mr. Holloway was a Vice Chairman
of Equitable. He served as an Executive Vice President of Equitable from
1979 until 1988. Prior to his retirement he served as a Director and Officer
of various Equitable subsidiaries and Mr. Holloway was also a Director of
DLJ until March 1990. Mr. Holloway was a Director of Rockefeller Center
Properties, Inc. and is a Director Emeritus of The Duke University
Management Corporation, Chairman of The Touro National Heritage Trust, a
Regent of the Cathedral of St. John the Divine and a Trustee of Duke
University (Emeritus) and the American Academy in Rome (Emeritus).
Mr. Miller was elected a Director of Alliance in July 1997. He has been
a Director, President and Chief Executive Officer of ECI since August 1997. He
was President of Equitable from August 1997 to January 1998 and has been
Chairman of Equitable since January 1998 and Chief Executive Officer and a
Director of Equitable since August 1997. He is also a Senior Executive Vice
President of AXA. From 1996 to 1997, he was Senior Vice Chairman of Chase
Manhattan Corporation. Prior thereto, he was President of Chemical Bank (which
merged with Chase in 1996) from 1994 to 1996 and Vice Chairman from 1991 to
1994. He is also a Director of DLJ, AXA Canada and KeySpan Energy Corporation,
formed as a
22
<PAGE>
result of the merger of Long Island Lighting Company and Brooklyn Union Gas
Co. AXA, ECI and Equitable are parents of the Partnership. DLJ is a
subsidiary of ECI.
Mr. Noris was elected a Director of Alliance in July 1995. Since
1995 Mr. Noris has been Executive Vice President and Chief Investment
Officer of ECI. Since 1995 Mr. Noris has been the Executive Vice President
and Chief Investment Officer of Equitable. Prior to that he was Vice
President - Investment Strategy for Salomon Brothers from 1992 to 1995.
From 1984 to 1992 Mr. Noris was a Principal in the Fixed Income and Equity
Divisions of Morgan Stanley Group Inc. ECI and Equitable are parents of the
Partnership.
Mr. Savage was elected a Director of Alliance in May 1993. He
has been Chairman of Alliance Capital Management International, a
division of the Partnership, since May 1994. Mr. Savage is a Director of
ACFG, a subsidiary of the Partnership, and was Chairman of ACFG from July
1993 to August 1996. Prior to this, he was with ECMC, serving as Vice
Chairman from June 1986 to April 1992, and Chairman from April 1992 to
July 1993. In addition, Mr. Savage is a Director of Lockheed Martin
Corporation, Lyondell Chemical Company and Qualcomm Inc.
Mr. Tulin was elected a Director of Alliance in July 1997. He is an
Executive Vice President and Chief Financial Officer of ECI and Director,
Vice Chairman and Chief Financial Officer of Equitable. Mr. Tulin was
elected a Director of DLJ in June 1997. Mr. Tulin was formerly Coopers &
Lybrand's Co-Chairman of the Insurance Industry Practice. Before joining
Coopers & Lybrand, Mr. Tulin was with Milliman and Robertson and from 1983
to 1988, he served as the consulting actuary to the Rehabilitators of the
Baldwin United Corporation Life Company subsidiaries in rehabilitation.
Mr. Tulin is a fellow of the Society of Actuaries, a member and Treasurer of
the American Academy of Actuaries and a frequent speaker at actuarial and
insurance industry conferences. He is a member of the Board of Directors
for the Jewish Theological Seminary. ECI and Equitable are parents of
the Partnership, and DLJ is a subsidiary of ECI.
Mrs. Williams was elected a Director of Alliance in October
1993. She is currently the Director of Special Projects of the
Partnership. She serves on the Boards of Directors of the India
Liberalisation Fund, The Spain Fund, The Austria Fund, The Southern
Africa Fund and The Turkish Growth Fund. Mrs. Williams, who has worked
at McKinsey and Company, Inc. and as a securities analyst at Mitchell,
Hutchins, Inc., has a Masters in Business Administration and a Ph.D. in
Art History. Mrs. Williams is the wife of Mr. Dave H. Williams, Chairman of
the Board and a Director of Alliance.
Mr. Zoellick was elected a Director of Alliance in February 1997. He is
currently the President and CEO of the Center for Strategic and International
Studies, an independent non-profit public policy institute with a staff of 180
and a $17 million budget. He served as the John M. Olin Professor in National
Security Affairs at the U.S. Naval Academy for 1997 and 1998. From 1993 through
1997, Mr. Zoellick was an Executive Vice President at Fannie Mae, the largest
investor in home mortgages in the U.S. Before joining Fannie Mae, he was Deputy
Chief of Staff of the White House and Assistant to the President from 1992 to
1993. From 1989 to 1992, Mr. Zoellick was the Counselor of the State Department
and later also Under Secretary of State for Economics. He served as the
President's personal representative for the 1991 and 1992 G-7 Economic Summits.
From 1985 to 1988, Mr. Zoellick served at the Department of Treasury in a number
of posts, including Counselor to Secretary James A. Baker III. He serves on the
boards of Jones Intercable and Said Holdings and the Advisory Council of Enron
Corp. Mr. Zoellick also serves on the boards of several non-profit entities
including the Council on Foreign Relations, the German Marshall Fund, the
Eurasia Foundation, the European Institute, the American Council on Germany, the
National Bureau of Asian Research and the Overseas Development Council.
Mr. Brewer joined Alliance in 1987 and has been Senior Vice
President and General Counsel since 1991. From 1987 until 1990 Mr. Brewer
was Vice President and Assistant General Counsel of Alliance.
Mr. Joseph joined Alliance in 1984 and has been Senior Vice President
and Chief Financial Officer since December 1994. He was Senior Vice President
and Controller from 1989 until January 1994 and Senior Vice President-Finance
from January 1994 until December 1994. From 1986 until 1989 Mr. Joseph was Vice
President and Controller of Alliance and from 1984 to 1986 Mr. Joseph was a Vice
President and the Controller of AFS, a subsidiary of the Partnership.
Certain executive officers of Alliance are also directors or trustees
and officers of various Alliance Mutual Funds and The Hudson River Trust and are
directors and officers of certain of the Partnership's subsidiaries.
23
<PAGE>
All directors of the General Partner hold office until the next annual
meeting of the stockholder of the General Partner and until their successors are
elected and qualified. All officers of the General Partner serve at the
discretion of the General Partner's Board of Directors.
The General Partner has an Audit Committee composed of its independent
directors Mr. Holloway and Mr. Zoellick. The Audit Committee reports to the
Board of Directors with respect to the selection and terms of engagement of the
Partnership's independent auditors and with respect to the Year 2000 initiative
and certain other matters. The Audit Committee also reviews various matters
relating to the Partnership's accounting and auditing policies and procedures.
The Audit Committee held 4 meetings in 1998.
The General Partner has a Board Compensation Committee composed of
Messrs. Williams, Holloway and Miller. The Board Compensation Committee is
responsible for compensation and compensation related matters, including, but
not limited to, responsibility and authority for determining bonuses,
contributions and awards under most employee incentive plans or arrangements,
amending or terminating such plans or arrangements or any welfare benefit plan
or arrangement or adopting any new incentive, fringe benefit or welfare benefit
plan or arrangement. The Option Committee, consisting of Mr. Holloway and Mr.
Zoellick, is responsible for granting options under the Partnership's Unit
Option Plan and 1993 Unit Option Plan. The 1997 Option Committee, consisting of
Messrs. Williams, Holloway, Miller and Zoellick, is responsible for granting
options under the Partnership's 1997 Long Term Incentive Plan. The Unit Option
and Unit Bonus Committee, consisting of Messrs. Holloway and Miller, is
responsible for granting awards under the Partnership's Unit Bonus Plan. The
Board Compensation Committee, Option Committee, Unit Option and Unit Bonus
Committee and 1997 Option Committee consult with a Management Compensation
Committee consisting of Messrs. Williams, Calvert, Carifa and Harrison with
respect to matters within their authority. The Century Club Plan Committee,
consisting of Messrs. Carifa and Michael J. Laughlin, Executive Vice President
of the General Partner and Chairman of the Board of AFD, is responsible for
granting awards under the Partnership's Century Club Plan.
The General Partner pays directors who are not employees of the
Partnership, Equitable or any affiliate of Equitable an annual retainer of
$18,000 plus $1,000 per meeting attended of the Board of Directors and $500 per
meeting of a committee of the Board of Directors not held in conjunction with a
Board of Directors meeting. The Partnership reimburses Messrs. Bastida, Brydon,
de Castries, Dolan, Duverne, Hatt, Holloway and Zoellick for certain expenses
incurred in attending Board of Directors' meetings. Other directors are not
entitled to any additional compensation from the General Partner for their
services as directors. The Board of Directors meets quarterly.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires the
General Partner's directors and executive officers, and persons who own more
than 10% of the Units, to file with the SEC and NYSE initial reports of
ownership and reports of changes in ownership of Units. To the best of the
Partnership's knowledge, during the year ended December 31, 1998 all Section
16(a) filing requirements applicable to its executive officers, directors and
10% beneficial owners were complied with.
24
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION
The following Summary Compensation Table sets forth all plan and
non-plan compensation awarded to, earned by or paid to the Chairman of the
Board and each of the four most highly compensated executive officers of the
General Partner at the end of 1998 ("Named Executive Officers"):
<TABLE>
<CAPTION>
Long Term Compensation
-----------------------------
Annual Compensation Awards Payouts
----------------------------------------- -------------------- --------- ----------
(a) (b) (c) (d) (e) (f) (g) (h) (i)
Other
Annual Restricted All other
Compen- Stock LTIP Compen-
sation Award(s) Options/ Payouts sation
Name and Principal Position Year Salary ($) Bonus ($) ($) (1) ($) (#Units) ($ )(1) ($) (2)
- --------------------------- ---- ---------- --------- ------- ---------- -------- ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Dave H. Williams 1998 $ 274,976 $4,500,000 $-------- $ 0 $ 0 $ 0 $ 482,531
Chairman of the Board 1997 274,976 3,000,000 --------- 0 0 0 835,027
1996 263,443 4,000,000 --------- 0 0 0 267,568
John D. Carifa 1998 250,000 5,000,000 --------- 0 500,000 0 1,209,640
President & Chief Operating 1997 250,000 4,000,000 --------- 0 0 0 686,979
Officer 1996 238,461 3,000,000 54,752 0 0 0 426,398
Bruce W. Calvert 1998 250,000 4,500,000 264,273 0 500,000 0 1,208,311
Vice Chairman & 1997 250,000 4,000,000 --------- 0 0 0 687,532
Chief Executive Officer 1996 238,461 3,000,000 --------- 0 0 0 425,101
Robert H. Joseph, Jr. 1998 163,846 591,500 257,798 0 20,000 0 187,737
Senior Vice President & 1997 160,000 494,000 --------- 0 20,000 0 110,335
Chief Financial Officer 1996 157,692 385,000 --------- 0 20,000 0 61,434
David R. Brewer, Jr. 1998 163,846 595,000 199,448 0 20,000 0 187,737
Senior Vice President 1997 157,692 495,500 104,646 0 20,000 0 110,037
& General Counsel 1996 146,538 395,750 --------- 0 20,000 0 62,108
</TABLE>
(1) Perquisites and personal benefits are not included in column (e) if
the aggregate amount did not exceed the lesser of either $50,000 or
10% of the total annual salary and bonus reported in columns (c)
and (d).
Column (e) for 1996 includes for Mr. Carifa, among other perquisites
and personal benefits, $26,775 representing interest rate subsidies
equal to 3% per annum of the outstanding balances of personal loans
obtained by Mr. Carifa from commercial banks, the proceeds of which
were used to pay withholding tax liabilities related to the vesting of
Units acquired in 1988 and $7,500, for personal tax services.
Column (e) for 1998 includes for Mr. Calvert, among other perquisites
and personal benefits, $247,323 for costs, including housing,
cost-of-living adjustment, tax equalization and car allowance, for a
temporary assignment in London and $16,950 for personal tax services.
Column (e) for 1998 includes for Mr. Joseph among other perquisites
and personal benefits, $240,000 representing the dollar value of the
difference between the exercise price and fair market value of Units
acquired as a result of the exercise of options granted under the
Partnership's Unit Option Plan, and $9,000 for personal tax services.
25
<PAGE>
(2) Column (e) for 1998 and 1997 includes for Mr. Brewer, among other
perquisites and personal benefits, $187,000 and $98,000,
respectively, representing the dollar value of the difference
between the exercise price and the fair market value of Units
acquired as a result of the exercise of options granted under the
Partnership's Unit Option Plan and, for 1998, $5,700 for personal
tax services.
(2) Column (i) includes award amounts vested and earnings credited in
1996, 1997 and 1998 in respect of the Alliance Partners Compensation
Plan. Column (i) does not include any amounts in respect of awards
made in 1998 in respect of the Alliance Partners Compensation Plan
since none of these awards have vested and no earnings have been
credited in respect of these awards.
Column (i) includes the following amounts for 1998:
<TABLE>
<CAPTION>
Vesting of Awards
Earnings Vesting of Awards and Accrued Earnings Profit
Accrued and Accrued Earnings Under Alliance Sharing Term Life
On Partners Under Capital Partners Plan Insurance
Plan Balances Accumulation Plan Compensation Plan Contribution Premiums Total
------------- -------------------- ------------------- ------------ ----------- -----
<S> <C> <C> <C> <C> <C> <C>
Dave H. Williams $ 14,258 $ 81,694 $ 342,316 $ 23,000 $ 21,263 $ 482,531
John D. Carifa 5,575 94,224 1,079,929 23,000 6,912 1,209,640
Bruce W. Calvert 4,918 98,306 1,079,929 23,000 2,158 1,208,311
Robert H. Joseph, Jr. 0 0 160,306 23,000 4,431 187,737
David R. Brewer, Jr. 0 0 160,306 23,000 4,431 187,737
</TABLE>
26
<PAGE>
OPTION GRANTS IN 1998
The table below shows information regarding grants of options made to
the Named Executive Officers under the Partnership's Unit Option Plan, 1993 Unit
Option Plan and 1997 Long Term Incentive Plan ("Partnership Option Plans")
during 1998. The amounts shown for each of the Named Executive Officers as
potential realizable values are based on assumed annualized rates of
appreciation of five percent and ten percent over the full ten-year term of the
options, which would result in Unit prices of approximately $43.61 and $69.28,
respectively. The amounts shown as potential realizable values for all
Unitholders represent the corresponding increases in the market value of
170,365,963 outstanding Units held by all Unitholders as of December 31, 1998,
which would total approximately $2.9 billion and $7.3 billion, respectively. No
gain to the optionees is possible without an increase in Unit price which will
benefit all Unitholders proportionately. These potential realizable values are
based solely on assumed rates of appreciation required by applicable SEC
regulations. Actual gains, if any, on option exercises and Unitholdings are
dependent on the future performance of the Partnership's Units. There can be no
assurance that the potential realizable values shown in this table will be
achieved.
<TABLE>
<CAPTION>
Option Grants In 1998
Potential Realizable Value at
Assumed
Annual Rates of Unit Price
Individual Grants (1) Appreciation for Option Term
---------------------------------------------------------------------------------------------------
% of total
Number of Options
Securities Granted to
Underlying Employees in Exercise
Options Granted Fiscal Year Price Expiration 5% 10%
Name (#) (2) ($/Unit) Date ($) ($)
- -----------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C>
Dave H. Williams 0 N/A N/A N/A N/A N/A
John D. Carifa 500,000 18.0% 26.3125 12/10/08 8,274,000 20,968,000
Bruce W. Calvert 500,000 18.0% 26.3125 12/10/08 8,274,000 20,968,000
Robert H. Joseph, Jr. 20,000 0.7% 26.3125 12/10/08 331,000 839,000
David R. Brewer, Jr. 20,000 0.7% 26.3125 12/10/08 331,000 839,000
</TABLE>
(1) Options on Units are awarded at the fair market value of Units at the date
of award and become exercisable in 20% increments commencing one year from
such date if the optionee has not died or terminated employment. Such
options lapse at the earliest of ten years after award, three months after
the optionee's normal termination of employment or disability, six months
after the optionee's death, or at the time of the optionee's termination of
employment otherwise than normally.
(2) Options in respect of 2,777,000 Units were granted in 1998.
27
<PAGE>
AGGREGATED OPTION EXERCISES IN 1998 AND 1998 YEAR-END OPTION VALUES
The following table summarizes for each of the Named Executive Officers
the number of options exercised during 1998, the aggregate dollar value realized
upon exercise, the total number of Units subject to unexercised options held at
December 31, 1998, and the aggregate dollar value of in-the-money, unexercised
options held at December 31, 1998. Value realized upon exercise is the
difference between the fair market value of the underlying Units on the exercise
date and the exercise price of the option. Value of unexercised, in-the-money
options at fiscal year-end is the difference between its exercise price and the
fair market value of the underlying Units on December 31, 1998, which was $25.75
per Unit. These values, have not been, and may never be, realized. The
underlying options have not been, and may never be, exercised; and actual gains,
if any, on exercise will depend on the value of the Partnership's Units on the
date of exercise. There can be no assurance that these values will be realized.
<TABLE>
<CAPTION>
Aggregated Option Exercises In 1998
And December 31, 1998 Option Values
Number of Units Value of Unexercised
Underlying Unexpired In-the-Money Options
Options Value Options at December 31, 1998 at December 31, 1998 ($) (1)
Exercised Realized ----------------------------------- ------------------------------------
Name (# Units) ($) Exercisable Unexercisable Exercisable Unexercisable
- ------------------------- ----------- --------------- ---------------- ---------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C> <C>
Dave H. Williams 0 N/A 0 0 0 0
John D. Carifa 0 N/A 530,000 720,000 8,457,500 3,530,000
Bruce W. Calvert 0 N/A 500,000 700,000 7,975,625 3,208,750
Robert H. Joseph, Jr. 10,880 240,000 119,120 80,000 1,943,495 775,250
David R. Brewer, Jr. 9,192 187,000 158,808 68,000 2,914,919 583,500
- ------------------------- ----------- --------------- ---------------- ---------------- ----------------- -----------------
</TABLE>
(1) In-the-Money Options are those where the fair market value of the
underlying Units exceeds the exercise price of the option. The Named
Executive Officers hold no other options in respect of the Units.
COMPENSATION AGREEMENTS WITH CERTAIN EXECUTIVE OFFICERS
In connection with Equitable's 1985 acquisition of DLJ, the former
parent of ACMC, ACMC entered into employment agreements with Messrs. Williams,
Carifa and Calvert. Each agreement provided for deferred compensation payable in
stated monthly amounts for ten years commencing at age 65, or earlier in a
reduced amount in the event of disability or death, if the individual involved
so elects. The right to receive such deferred compensation is vested. Assuming
payments commence at age 65, the annual amount of deferred compensation payable
for ten years to Messrs. Williams, Carifa and Calvert is $378,900, $522,036, and
$434,612, respectively. While the Partnership assumed responsibility for payment
of these deferred compensation obligations, ACMC and Alliance are required,
subject to certain limitations, to make capital contributions to the Partnership
in an amount equal to the payments, and ACMC is also obligated to the employees
for the payments. ACMC's obligations to make capital contributions to the
Partnership are guaranteed, subject to certain limitations, by Equitable
Investment Corporation ("EIC"), a wholly-owned subsidiary of Equitable, the
parent of Alliance.
CERTAIN EMPLOYEE BENEFIT PLANS
RETIREMENT PLAN. The Partnership maintains a qualified,
non-contributory, defined benefit retirement plan covering most employees of the
Partnership who have completed one year of service and attained age 21. Employer
contributions are determined by application of actuarial methods and assumptions
to reflect the cost of benefits under the plan. Each participant's benefits are
determined under a formula which takes into account years of credited service,
the participant's average compensation over prescribed periods and Social
Security covered compensation. The maximum annual benefit payable under the plan
may not exceed the lesser of $100,000 or 100% of a participant's average
aggregate compensation for the three consecutive years in which he received the
highest aggregate compensation from the Partnership or such lower limit as may
be imposed by the Internal Revenue Code on certain participants by reason of
their coverage under another qualified
28
<PAGE>
plan maintained by the Partnership. A participant is fully vested after the
completion of five years of service. The plan generally provides for payments
to or on behalf of each vested employee upon such employee's retirement at
the normal retirement age provided under the plan or later, although
provision is made for payment of early retirement benefits on an actuarially
reduced basis. Normal retirement age under the plan is 65. Death benefits are
payable to the surviving spouse of an employee who dies with a vested benefit
under the plan.
The table below sets forth with respect to the retirement plan the
estimated annual straight life annuity benefits payable upon retirement at
normal retirement age for employees with the remuneration and years of service
indicated.
<TABLE>
<CAPTION>
Estimated Annual Benefits
-------------------------------------------------------------------------------------
Average Final Years of Service at Retirement
Compensation
-------------------------------------------------------------------------------------
15 20 25 30 35 40 45
<S> <C> <C> <C> <C> <C> <C> <C>
$100,000 $19,277 $25,702 $32,128 $38,553 $44,979 $49,979 $54,979
150,000 30,527 40,702 50,878 61,053 71,229 78,729 86,229
200,000 41,777 55,702 69,628 83,553 97,479 100,000 100,000
250,000 53,027 70,702 88,378 100,000 100,000 100,000 100,000
300,000 64,277 85,702 100,000 100,000 100,000 100,000 100,000
</TABLE>
Assuming they are employed by the Partnership until age 65, the
credited years of service under the plan for Messrs. Williams, Carifa, Calvert,
Joseph and Brewer would be 20, 40, 38, 28 and 22, respectively. Compensation on
which plan benefits are based includes only base compensation and not bonuses,
incentive compensation, profit-sharing plan contributions or deferred
compensation. The compensation for calculation of plan benefits for each of
these five individuals for 1998 is $160,000, $160,000, $160,000, $160,000 and
$160,000, respectively.
DLJ EXECUTIVE SUPPLEMENTAL RETIREMENT PROGRAM. In 1983 DLJ adopted an
Executive Supplemental Retirement Program under which certain employees of the
Partnership deferred a portion of their 1983 compensation in return for which
DLJ agreed to pay each of them a specified annual retirement benefit for 15
years beginning at age 65. Benefits are based upon the participant's age and the
amount deferred and are calculated to yield an approximate 12.5% annual compound
return. In the event of the participant's disability or death, an equal or
lesser amount is to be paid to the participant or his beneficiary. After age 55,
participants the sum of whose age and years of service equals 80 may elect to
have their benefits begin in an actuarially reduced amount before age 65. DLJ
has funded its obligation under the Program through the purchase of life
insurance policies.
The following table shows as to the Named Executive Officers who are
participants in the Plan the estimated annual retirement benefit payable at age
65. Each of these individuals is fully vested in the applicable benefit.
<TABLE>
<CAPTION>
Estimated Annual
Name Retirement Benefit
- ---- ------------------
<S> <C>
Dave H. Williams $ 41,825
John D. Carifa 114,597
Bruce W. Calvert 145,036
</TABLE>
29
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
PRINCIPAL SECURITY HOLDERS
The Partnership has no information that any person beneficially owns
more than 5% of the outstanding Units except (i) Equitable, ACMC and ECMC,
wholly-owned subsidiaries of ECI, and (ii) as reported on Amendment No. 5 to
Schedule 13D dated September 4, 1997, filed with the SEC by AXA and certain
of its affiliates pursuant to the Securities Exchange Act of 1934. The
following table and notes have been prepared in reliance upon such filing for
the nature of ownership and an explanation of overlapping ownership.
<TABLE>
<CAPTION>
Amount and Nature of
Beneficial
Name and Address of Ownership Reported on Percent
Beneficial Owner Schedule of Class
- ------------------- ---------------------- --------
<S> <C> <C>
AXA (1)(2)(3)(4) 96,647,111 56.7%
9 place Vendome
75001 Paris
France
ECI (4) 96,647,111 56.7%
1290 Avenue of the Americas
New York, NY 10019
</TABLE>
(1) Based on information provided by ECI, at March 1, 1999, AXA and
certain of its subsidiaries beneficially owned approximately
58.4% of ECI's outstanding common stock. For insurance regulatory
purposes the shares of capital stock of ECI beneficially owned
by AXA and its subsidiaries have been deposited into a voting
trust ("Voting Trust") which has an initial term of 10
years commencing May 12, 1992. The trustees of the Voting Trust
(the "Voting Trustees") are Claude Bebear, Patrice Garnier and
Henri de Clermont-Tonnerre, each of whom serves on either the
Executive Board (in the case of Mr. Bebear) or Supervisory Board
(in the case of Messrs. Garnier and de Clermont-Tonnerre) of
AXA. The Voting Trustees have agreed to exercise their voting
rights to protect the legitimate economic interests of AXA, but
with a view to ensuring that certain minority shareholders of AXA
do not exercise control over ECI or certain of its insurance
subsidiaries.
(2) Based on information provided by AXA, on March 1, 1999,
approximately 20.7% of the issued ordinary shares (representing
32.7% of the voting power) of AXA were owned directly and
indirectly by Finaxa, a French holding company. As of March 1,
1999, 61.7% of the shares (representing 72.3% of the voting power)
of Finaxa were owned by four French mutual insurance companies (the
"Mutuelles AXA") (one of which, AXA Assurances I.A.R.D. Mutuelle,
owned 35.4% of the shares, representing 41.5% of the voting power),
and 22.7% of the shares of Finaxa (representing 13.7% of the voting
power) were owned by Paribas, a French bank. Including the ordinary
shares owned by Finaxa, on March 1, 1999, the Mutuelles AXA
directly or indirectly owned approximately 23.9% of the issued
ordinary shares (representing 37.6% of the voting power) of AXA.
(3) The Voting Trustees may be deemed to be beneficial owners of all
Units beneficially owned by AXA and its subsidiaries. In addition,
the Mutuelles AXA, as a group, and Finaxa may be deemed to be
beneficial owners of all Units beneficially owned by AXA and its
subsidiaries. By virtue of the provisions of the Voting Trust
Agreement, AXA may be deemed to have shared voting power with
respect to the Units. AXA and its subsidiaries have the power to
dispose or direct the disposition of all shares of the capital
stock of ECI deposited in the Voting Trust. The Mutuelles AXA, as a
group, and Finaxa may be deemed to share the power to vote or to
direct the vote and to dispose or to direct the disposition of all
the Units beneficially
30
<PAGE>
owned by AXA and its subsidiaries. The address of each of AXA and
the Voting Trustees is 9 Place Vendome, 75001 Paris, France. The
address of Finaxa is 23 avenue Matignon, 75008 Paris, France. The
addresses of the Mutuelles AXA are as follows: The address of each
of AXA Assurances Vie Mutuelle and AXA Assurances I.A.R.D. Mutuelle
is 21 rue de Chateaudun, 75009 Paris, France; the address of AXA
Conseil Vie Assurance Mutuelle is Tour Franklin, 100/101 Terrasse
Boieldieu, Cedex 11, 92042 Paris La Defense, France; and the
address of AXA Courtage Assurance Mutuelle is 26 rue Louis le
Grand, 75002 Paris, France. The address of Paribas is 3 rue
d'Antin, Paris, France.
(4) By reason of their relationship, AXA, the Voting Trustees, the
Mutuelles AXA, Finaxa, ECI, Equitable, Equitable Holdings, L.L.C.,
EIC, ACMC and ECMC may be deemed to share the power to vote or to
direct the vote and to dispose or direct the disposition of all or
a portion of the 96,613,481 Units.
31
<PAGE>
MANAGEMENT
The following table sets forth, as of March 1, 1999, the beneficial
ownership of Units by each director and each Named Executive Officer of the
General Partner and by all directors and executive officers of the General
Partner as a group:
<TABLE>
<CAPTION>
Name of Number of Units and Nature of Percent of
Beneficial Owner Beneficial Ownership Class
---------------- ---------------------------- -----------
<S> <C> <C>
Dave H. Williams (1)(2) 1,868,912 1.1%
Luis Javier Bastida 0 *
Donald H. Brydon (1) 0 *
Bruce W. Calvert (1) (3) 1,550,000 *
John D. Carifa(1) (4) 2,205,136 1.3%
Henri de Castries (1) 0 *
Kevin C. Dolan (1) 0 *
Denis Duverne (1) 0 *
Alfred Harrison (1) 730,820 *
Herve Hatt (1) 0 *
Michael Hegarty (1) 0 *
Benjamin D. Holloway 11,600 *
Edward D. Miller (1) 0 *
Peter D. Noris (1) 2,000 *
Frank Savage (1) 101,000 *
Stanley B. Tulin (1) 0 *
Reba W. Williams (1)(5) 1,868,912 *
Robert B. Zoellick 600 *
David R. Brewer, Jr. (1)(6) 253,808 *
Robert H. Joseph, Jr. (1) (7) 147,120 *
All Directors and executive officers
of the General Partner as a Group (20 persons)(8) 6,870,996 4.0%
</TABLE>
* Number of Units listed represents less than 1% of the Units
outstanding.
(1) Excludes Units beneficially owned by AXA, ECI and/or Equitable.
Messrs. Williams, Brydon, de Castries, Dolan, Duverne, Hatt,
Hegarty, Miller, Noris and Tulin are directors and/or officers
of AXA, ECI and/or Equitable. Messrs. Williams, Calvert, Carifa,
Harrison, Savage, Brewer, Joseph and Mrs. Reba W. Williams are
directors and/or officers of ACMC.
(2) Includes 160,000 Units owned by Mrs. Reba W. Williams.
(3) Includes 550,000 Units which may be acquired within 60 days
under Partnership Option Plans.
(4) Includes 590,000 Units which may be acquired within 60 days
under Partnership Option Plans.
(5) Includes 1,708,912 Units owned by Mr. Dave H. Williams.
(6) Includes 162,808 Units which may be acquired within 60 days
under Partnership Option Plans.
(7) Includes 127,120 Units which may be acquired within 60 days
under Partnership Option Plans.
(8) Includes 1,429,928 Units which may be acquired within 60 days
under Partnership Option Plans.
32
<PAGE>
The following tables set forth, as of March 1, 1999, the beneficial
ownership of the common stock of ECI, AXA and Finaxa by each director and each
Named Executive Officer of the General Partner and by all directors and
executive officers of the General Partner as a group:
<TABLE>
<CAPTION>
ECI Common Stock
----------------
Name of Number of Shares and Nature of Percent of
Beneficial Owner Beneficial Ownership Class
- ---------------- ------------------------------ ----------
<S> <C> <C>
Dave H. Williams (1)(2) 100,000 *
Luis Javier Bastida 0 *
Donald H. Brydon (2) 0 *
Bruce W. Calvert (3) 50,000 *
John D. Carifa (4) 50,000 *
Henri de Castries (2)(5) 13,333 *
Kevin C. Dolan (2) 0 *
Denis Duverne (2)(6) 10,333 *
Alfred Harrison 0 *
Herve Hatt (2) 0 *
Michael Hegarty (2)(7) 48,228 *
Benjamin D. Holloway 108 *
Edward D. Miller (2)(8) 142,745 *
Peter D. Noris (9) 70,825 *
Frank Savage 136 *
Stanley B. Tulin (10) 87,437 *
Reba W. Williams (1) 100,000 *
Robert B. Zoellick 0 *
David R. Brewer, Jr. 0 *
Robert H. Joseph, Jr. 0 *
All Directors and executive
officers of the General
Partner as a Group (20 Persons) (11) 573,145 *
</TABLE>
* Number of shares listed represents less than one percent (1%)
of the number of shares of Common Stock outstanding.
(1) Represents 100,000 shares subject to options held by Mr.
Williams, which options Mr. Williams has the right to exercise
within 60 days.
(2) Excludes shares beneficially owned by AXA. Messrs. Williams,
Brydon, de Castries, Dolan, Duverne, Hatt, and Miller are
officers of AXA.
(3) Represents 50,000 shares subject to options held by Mr.
Calvert, which options Mr. Calvert has the right to exercise
within 60 days.
(4) Represents 50,000 shares subject to options held by Mr.
Carifa, which options Mr. Carifa has the right to exercise
within 60 days.
(5) Represents 13,333 shares subject to options held by Mr. de
Castries, which options Mr. de Castries has the right to
exercise within 60 days.
(6) Includes 8,333 shares subject to options held by Mr. Duverne,
which options Mr. Duverne has the right to exercise within 60
days.
(7) Includes 48,039 shares subject to options held by Mr.
Hegarty, which options Mr. Hegarty has the right to exercise
within 60 days.
(8) Represents 142,745 shares subject to options held by Mr.
Miller, which options Mr. Miller has the right to exercise
within 60 days.
(9) Represents 70,825 shares subject to options held by Mr.
Noris, which options Mr. Noris has the right to exercise
within 60 days.
(10) Includes 82,819 shares subject to options held by Mr. Tulin,
which options Mr. Tulin has the right to exercise within 60
days and 4,000 shares owned jointly by Mr. Tulin and his
spouse, Riki P. Tulin.
(11) Includes 566,094 shares subject to options, which options
my be exercised within 60 days.
33
<PAGE>
<TABLE>
<CAPTION>
AXA Common Stock
----------------
Name of Number of Shares and Nature of Percent of
Beneficial Owner Beneficial Ownership Class
- ---------------- ------------------------------ ----------
<S> <C> <C>
Dave H. Williams (1) 5,000 *
Luis Javier Bastida 0 *
Donald H. Brydon 0 *
Bruce W. Calvert (2) 1,250 *
John D. Carifa (3) 1,750 *
Henri de Castries (4) 70,188 *
Kevin C. Dolan (5) 19,201 *
Denis Duverne (6) 11,042 *
Alfred Harrison 0 *
Herve Hatt 0 *
Michael Hegarty 0 *
Benjamin D. Holloway 0 *
Edward D. Miller 0 *
Peter D. Noris (7) 1,250 *
Frank Savage 0 *
Stanley B. Tulin (8) 3,500 *
Reba W. Williams (1) 5,000 *
Robert B. Zoellick 0 *
David R. Brewer, Jr. 0 *
Robert H. Joseph, Jr. 0 *
All Directors and executive officers
of the General Partner as a Group
(20 persons) (9) 113,181 *
</TABLE>
* Number of shares listed represents less than one percent (1%)
of the outstanding AXA common stock. Holdings of AXA American
Depositary Shares are expressed as their equivalent in AXA
common stock. Each AXA American Depositary Share is equivalent
to one-half of a share of AXA Common Stock.
(1) Represents 5,000 shares subject to options held by Mr.
Williams, which options Mr. Williams has the right to exercise
within 60 days.
(2) Represents 1,250 shares subject to options held by Mr.
Calvert, which options Mr. Calvert has the right to exercise
within 60 days.
(3) Includes 1,250 shares subject to options held by Mr. Carifa,
which options Mr. Carifa has the right to exercise within 60
days.
(4) Includes 69,188 shares subject to options held by Mr. de
Castries, which options Mr. de Castries has the right to
exercise within 60 days.
(5) Represents 19,201 shares subject to options held by Mr. Dolan,
which options Mr. Dolan has the right to exercise within 60
days.
(6) Includes 1,000 shares held jointly with Mr. Duverne's wife, 42
shares owned by Mr. Duverne's children and 10,000 shares
subject to options held by Mr. Duverne, which options Mr.
Duverne has the right to exercise within 60 days.
(7) Represents 1,250 shares subject to options held by Mr. Noris,
which options Mr. Noris has the right to exercise within 60
days.
(8) Includes 2,500 shares subject to options held by Mr. Tulin,
which options Mr. Tulin has the right to exercise within 60
days.
(9) Includes 109,639 total options shares subject to options,
which options may be exercised within 60 days.
34
<PAGE>
<TABLE>
<CAPTION>
Finaxa Common Stock
-------------------
Name of Number of Shares and Nature of Percent of
Beneficial Owner Beneficial Ownership Class
- ---------------- ------------------------------ ----------
<S> <C> <C>
Dave H. Williams 0 *
Luis Javier Bastida 0 *
Donald H. Brydon 0 *
Bruce W. Calvert 0 *
John D. Carifa 0 *
Henri de Castries (1) 115,000 *
Kevin C. Dolan 0 *
Denis Duverne 0 *
Alfred Harrison 0 *
Herve Hatt 0 *
Michael Hegarty 0 *
Benjamin D. Holloway 0 *
Edward D. Miller 0 *
Peter D. Noris 0 *
Frank Savage 0 *
Stanley B. Tulin 0 *
Reba W. Williams 0 *
Robert B. Zoellick 0 *
David R. Brewer, Jr. 0 *
Robert H. Joseph, Jr. 0 *
All Directors and executive officers
of the General Partner
as a Group (20 persons) (2) 115,000 *
</TABLE>
* Number of shares listed represents less than one percent
(1%) of the outstanding Finaxa common stock.
(1) Represents 115,000 shares subject to options held by Mr. de
Castries, which options Mr. de Castries has the right to
exercise within 60 days.
(2) Represents 115,000 shares subject to options, which options
may be exercised within 60 days.
35
<PAGE>
The General Partner makes all decisions relating to the management
of the Partnership. The General Partner has agreed that it will conduct no
business other than managing the Partnership, although it may make certain
investments for its own account. Conflicts of interest, however, could arise
between the General Partner and the Unitholders.
Section 17-403(b) of the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act") states that, except as provided in the
Delaware Act or the partnership agreement, a general partner of a limited
partnership has the same liabilities to the partnership and to the limited
partners as a general partner in a partnership without limited partners.
While, under Delaware law, a general partner of a limited partnership is
liable as a fiduciary to the other partners, the Agreement of Limited
Partnership of Alliance Capital Management L.P. (As Amended and Restated)
("Partnership Agreement") sets forth a more limited standard of liability for
the General Partner. The Partnership Agreement provides that the General
Partner is not liable for monetary damages to the Partnership for errors in
judgment or for breach of fiduciary duty (including breach of any duty of
care or loyalty), unless it is established that the General Partner's action
or failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the Partnership, with reckless disregard for the
best interests of the Partnership or with actual bad faith on the part of the
General Partner, or constituted actual fraud. Whenever the Partnership
Agreement provides that the General Partner is permitted or required to make
a decision (i) in its "discretion," the General Partner is entitled to
consider only such interests and factors as it desires and has no duty or
obligation to consider any interest of or other factors affecting the
Partnership or any Unitholder or (ii) in its "good faith" or under another
express standard, the General Partner will act under that express standard
and will not be subject to any other or different standard imposed by the
Partnership Agreement or applicable law.
In addition, the Partnership Agreement grants broad rights of
indemnification to the General Partner and its directors and affiliates and
authorizes the Partnership to enter into indemnification agreements with the
directors, officers, partners, employees and agents of the Partnership and
its affiliates. The Partnership has granted broad rights of indemnification
to officers of the General Partner and employees of the Partnership. In
addition, the Partnership assumed indemnification obligations previously
extended by Alliance to its directors, officers and employees. The foregoing
indemnification provisions are not exclusive, and the Partnership is
authorized to enter into additional indemnification arrangements. The
Partnership has obtained directors and officers liability insurance.
The Partnership Agreement also allows transactions between the
Partnership and the General Partner or its affiliates if the transactions are
on terms determined by the General Partner to be comparable to (or more
favorable to the Partnership than) those that would prevail with any
unaffiliated party. The Partnership Agreement provides that those
transactions are deemed to meet that standard if such transactions are
approved by a majority of those directors of the General Partner who are not
directors, officers or employees of any affiliate of the General Partner
(other than the Partnership and its subsidiaries) or, if in the reasonable
and good faith judgment of the General Partner, the transactions are on terms
substantially comparable to (or more favorable to the Partnership than) those
that would prevail in a transaction with an unaffiliated party.
The Partnership Agreement expressly permits all affiliates of the
General Partner (including Equitable and its other subsidiaries) to compete,
directly or indirectly, with the Partnership, to engage in any business or
other activity and to exploit any opportunity, including those that may be
available to the Partnership. AXA, ECI, Equitable and certain of their
subsidiaries currently compete with the Partnership. See "Item 13." Certain
Relationships and Related Transactions-Competition." The Partnership
Agreement further provides that, except to the extent that a decision or
action by the General Partner is taken with the specific intent of providing
a benefit to an affiliate of the General Partner to the detriment of the
Partnership, there is no liability or obligation with respect to, and no
challenge of, decisions or actions of the General Partner that would
otherwise be subject to claims or other challenges as improperly benefiting
affiliates of the General Partner to the detriment of the Partnership or
otherwise involving any conflict of interest or breach of a duty of loyalty
or similar fiduciary obligation.
The fiduciary obligations of general partners is a developing area
of the law and it is not clear to what extent the foregoing provisions of the
Partnership Agreement are enforceable under Delaware or federal law.
36
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
COMPETITION
AXA, ECI, Equitable and certain of their direct and indirect
subsidiaries provide financial services, some of which are competitive with
those offered by the Partnership. The Partnership Agreement specifically
allows Equitable and its subsidiaries (other than the General Partner) to
compete with the Partnership and to exploit opportunities that may be
available to the Partnership. AXA, ECI, Equitable and certain of their
subsidiaries have substantially greater financial resources than the
Partnership or the General Partner.
FINANCIAL SERVICES
The Partnership Agreement permits Equitable and its affiliates to
provide services to the Partnership on terms comparable to (or more favorable
to the Partnership than) those that would prevail in a transaction with an
unaffiliated third party. The Partnership believes that its arrangements with
Equitable and its affiliates are at least as favorable to the Partnership as
could be obtained from an unaffiliated third party, based on its knowledge of
and inquiry with respect to comparable arrangements with or between
unaffiliated third parties.
The Partnership acts as the investment manager for the general and
separate accounts of Equitable and its insurance company subsidiary
pursuant to investment advisory agreements. During 1998 the Partnership
received approximately $62.5 million in fees pursuant to these agreements. In
connection with the services provided under these agreements the Partnership
provides ancillary accounting, valuation, reporting, treasury and other
services under service agreements. During 1998 the Partnership received
approximately $8.7 million in fees pursuant to these agreements. Equitable
provides certain legal and other services to the Partnership relating to
certain insurance and other regulatory aspects of the general and separate
accounts of Equitable and its insurance company subsidiary. During 1998 the
Partnership paid approximately $1.2 million to Equitable for these services.
During 1998 the Partnership paid Equitable approximately $32.0
million for certain services provided by Equitable with respect to the
marketing of the variable annuity insurance and variable life insurance
products for which The Hudson River Trust is the funding vehicle.
Equitable has issued life insurance policies to ACMC on certain
employees of the Partnership, the costs of which are borne by ACMC without
reimbursement by the Partnership. During 1998 ACMC paid approximately $5.7
million in insurance premiums on these policies.
The Partnership and its employees are covered under various
insurance policies maintained by Equitable and its subsidiaries. The amount
of premiums for these group policies paid by the Partnership to Equitable was
approximately $215,000 for 1998.
The Partnership provides investment management services to certain
employee benefit plans of Equitable and DLJ. Advisory fees from these
accounts totaled approximately $6.0 million for 1998 including $2.6 million
from the separate accounts of Equitable.
In April 1996 the Partnership acquired the United States investing
activities and business of National Mutual Funds Management ("NMFM"), a
subsidiary of AXA. In connection therewith the Partnership entered into
investment management agreements with National Mutual Holdings Limited, the
parent of NMFM and a subsidiary of AXA, and various of its subsidiaries
(collectively, the "NMH Group"). The NMH Group paid $3.2 million in advisory
fees to the Partnership in 1998.
EQ Financial was the Partnership's third largest distributor of U.S.
Funds in 1998 for which it received sales concessions from the Partnership on
sales of $826 million. In 1998 EQ Financial also distributed certain of the
Partnership's cash management products. EQ Financial received distribution
payments totaling $8.2 million in 1998 for these services.
DLJ Securities Corporation and Pershing distribute certain Alliance
Mutual Funds and cash management products and receive sales concessions and
distribution payments. In addition, the Partnership and Pershing have an
agreement pursuant to
37
<PAGE>
which Pershing recommends to certain of its correspondent firms the use of
the Partnership's cash management products for which Pershing is allocated a
portion of the revenues derived by the Partnership from sales through the
Pershing correspondents. Amounts paid by the Partnership to DLJ Securities
Corporation, Pershing and Wood Struthers & Winthrop Management Corp., a
subsidiary of DLJ, in connection with the above distribution services were
$74.3 million in 1998. DLJ and its subsidiaries also provide the Partnership
with brokerage and various other services, including clearing, investment
banking, research, data processing and administrative services. Brokerage,
the expense of which is borne by the Partnership's clients, aggregated
approximately $112,000 for 1998. During 1998 the Partnership paid $600,000 to
DLJ and its subsidiaries for all other services.
During 1998 the Partnership reimbursed Equitable in the amount of
$3.1 million for rent and the use of certain services and facilities.
The Partnership and its subsidiaries provide investment management
services to AXA Reinsurance Company, a subsidiary of AXA, and its affiliates,
pursuant to discretionary investment advisory agreements. AXA Reinsurance
Company and its affiliates paid the Partnership approximately $829,000 during
1998 for such services.
The Partnership and its subsidiaries also provide investment
management services to AXA World Funds, a Luxembourg fund, pursuant to a
sub-advisory agreement between the Partnership and AXA Funds Management SA, a
subsidiary of AXA. The Partnership earned $102,000 in management fees during
1998, which fees were paid in full in 1999.
OTHER TRANSACTIONS
During 1998 the Partnership paid certain legal and other expenses
incurred by Equitable and its insurance company subsidiary relating to the
general and separate accounts of Equitable and such subsidiary for which it
has been or will be fully reimbursed by Equitable. The largest amount of such
indebtedness outstanding during 1998 was approximately $81,000 which
represents the amount outstanding on September 30, 1998.
During 1997 a subsidiary of the Partnership and DLJ Merchant Banking
II, Inc. ("DLJMB"), a subsidiary of DLJ, jointly sought opportunities for
private equity investments in India. The Partnership's subsidiary incurred
expenditures on behalf of the proposed joint venture. DLJMB agreed to
reimburse the Partnership's subsidiary for 50% of such expenditures. The
Partnership's subsidiary was fully reimbursed for such expenditures in 1998.
The largest amount of indebtedness due to the Partnership in respect of such
venture was approximately $288,000 which represents the amount outstanding on
April 30, 1998.
Equitable and its affiliates are not obligated to provide funds to
the Partnership, except for ACMC's and the General Partner's obligation to
fund certain of the Partnership's deferred compensation and employee benefit
plan obligations referred to under "Compensation Agreements with Named
Executive Officers". The Partnership Agreement permits Equitable and its
affiliates to lend funds to the Partnership at the lender's cost of funds.
Mrs. Reba W. Williams, the wife of Dave H. Williams, was
employed by the Partnership during 1998 and received compensation in the
amount of $100,000.
Certain of the hedge funds managed by the Partnership pay a portion
of the carried interests or performance fees to certain portfolio managers,
research analysts and other investment professionals who are associated with
the management of the hedge funds. The Partnership provides investment
management services to the hedge funds and is entitled to receive between 75%
and 100% of the aggregate carried interests or performance fees paid by such
funds. The Partnership received approximately $29.4 million from the hedge
funds in 1998 primarily in respect of the performance by the hedge funds in
1997. Mr. Alfred Harrison, a Director and Vice Chairman of the General
Partner, received $2,906,098 in 1998 in respect of his association with the
hedge funds.
ACMC and the General Partner are obligated, subject to certain
limitations, to make capital contributions to the Partnership in an amount
equal to the payments the Partnership is required to make as deferred
compensation under the employment agreements entered into in connection with
Equitable's 1985 acquisition of DLJ, as well as obligations of the
Partnership to various employees and their beneficiaries under the
Partnership's Capital Accumulation Plan. In 1998 ACMC
38
<PAGE>
made capital contributions to the Partnership in the amount of $716,000 in
respect of these obligations. ACMC's obligations to make these contributions
are guaranteed by EIC subject to certain limitations. All tax deductions with
respect to these obligations, to the extent funded by ACMC, Alliance or EIC,
will be allocated to ACMC or Alliance.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K
(a) The following is a list of the documents filed as a part of this
Annual Report on Form 10-K:
<TABLE>
<CAPTION>
Reference Pages
Financial Statements in Annual Report
- -------------------- ----------------
<S> <C>
Consolidated Statements of Financial Condition
December 31, 1998 and 1997................................. 59
Consolidated Statements of Income
Years ended December 31, 1998, 1997 and 1996............... 60
Consolidated Statements of Changes in Partners' Capital
and Comprehensive Income
Years ended December 31 1998, 1997 and 1996................ 61
Consolidated Statements of Cash Flows
Years ended December 31, 1998, 1997, and 1996.............. 62
Notes to Consolidated Financial Statements........................ 63 - 79
Independent Auditors' Report...................................... 80
</TABLE>
Schedules are omitted because they are not applicable, or
the required information is set forth in the financial statements or notes
thereto.
(b) REPORTS ON FORM 8-K.
No report on Form 8-K was filed during the last quarter of
1998.
39
<PAGE>
(c) EXHIBITS.
The following exhibits required to be filed by Item 601 of
Regulation S-K are filed herewith or, in the case of Exhibit 13.10,
incorporated by reference herein:
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
10.102 Unit Option Plan Agreement dated December 10,
1998 with Bruce W. Calvert
10.103 Unit Option Plan Agreement dated December 10,
1998 with John D. Carifa
10.104 Unit Option Plan Agreement dated December 10,
1998 with Robert H. Joseph, Jr.
10.105 Unit Option Plan Agreement dated December 10,
1998 with David R. Brewer, Jr.
10.106 Revolving Credit Agreement dated as of July 20,
1998 among Alliance Capital Management L.P., as
Borrower, and the lending institutions listed on
Schedule 1 thereto, collectively as Banks, and
NationsBank, N.A., The Chase Manhattan Bank,
and the Bank of New York, individually as
Co-Agents, NationsBank, N.A., as
Administrative Agent, The Chase Manhattan
Bank, as Syndication Agent, and The Bank of
New York, as Documentation Agent.
13.10 Pages 43 through 80 of the Alliance Capital
Management L.P. 1998 Annual Report to Unitholders
22.10 Subsidiaries of the Registrant
24.9 Consent of KPMG LLP
25.95 Power of Attorney by Luis Javier Bastida
25.96 Power of Attorney by Donald H. Brydon
25.97 Power of Attorney by Henri de Castries
25.98 Power of Attorney by Kevin C. Dolan
25.99 Power of Attorney by Denis Duverne
25.100 Power of Attorney by Alfred Harrison
25.101 Power of Attorney by Herve Hatt
25.102 Power of Attorney by Michael Hegarty
25.103 Power of Attorney by Benjamin D. Holloway
25.104 Power of Attorney by Edward D. Miller
25.105 Power of Attorney by Peter D. Noris
25.106 Power of Attorney by Stanley B. Tulin
25.107 Power of Attorney by Robert B. Zoellick
27.03 Financial Data Schedule
</TABLE>
40
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused this report
to be signed on its behalf by the undersigned, thereunto duly authorized.
Alliance Capital Management L.P.
By: Alliance Capital Management
Corporation, General Partner
Date: March 30, 1999 By: /S/Dave H. Williams
-------------------
Dave H. Williams
Chairman
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Date: March 30, 1999 /s/John D. Carifa
-------------------
John D. Carifa
President and Chief Operating Officer
Date: March 30, 1999 /s/Robert H. Joseph, Jr.
-------------------
Robert H. Joseph, Jr.
Senior Vice President and Chief
Financial Officer
41
<PAGE>
Directors
/s/Dave H. Williams *
- ------------------------------ -----------------------------
Dave H. Williams Michael Hegarty
Chairman and Director Director
* *
- ------------------------------ -----------------------------
Luis Javier Bastida Benjamin D. Holloway
Director Director
* *
- ------------------------------ -----------------------------
Donald H. Brydon Edward D. Miller
Director Director
/s/Bruce W. Calvert *
- ------------------------------ ------------------------------
Bruce W. Calvert Peter D. Noris
Director Director
/s/John D. Carifa /s/Frank Savage
- ------------------------------ ------------------------------
John D. Carifa Frank Savage
Director Director
* *
- ------------------------------ ------------------------------
Henri de Castries Stanley B. Tulin
Director Director
* /s/Reba W. Williams
- ------------------------------ -------------------------------
Kevin C. Dolan Reba W. Williams
Director Director
* *
- ------------------------------ --------------------------------
Denis Duverne Robert B. Zoellick
Director Director
* *By/s/David R. Brewer, Jr.
- ------------------------------ --------------------------------
Alfred Harrison David R. Brewer, Jr.
Director (Attorney-in-Fact)
*
- ------------------------------
Herve Hatt
Director
42
<PAGE>
ALLIANCE CAPITAL MANAGEMENT L.P.
UNIT OPTION PLAN AGREEMENT
AGREEMENT, dated December 10, 1998 between Alliance Capital Management
L.P. (the "Partnership") and Bruce W. Calvert (the "Participant"), an employee
of the Partnership or a subsidiary of the Partnership (an "Employee
Participant") or a member of the Board of Directors of Alliance Capital
Management Corporation (the "Board"), the general partner of the Partnership (a
"Director Participant").
The 1997 Option Committee (the "Administrator") of the Board, pursuant to
the Alliance Capital Management L.P. 1997 Long Term Incentive Plan, a copy of
which has been delivered to the Participant (the "Plan"), has granted to the
Participant an option to purchase units representing assignments of the
beneficial ownership of limited partnership interests in the Partnership (the
"Units") as hereinafter set forth, and authorized the execution and delivery of
this Agreement.
In accordance with that grant, and as a condition thereto, the Partnership
and the Participant agree as follows:
1. Grant of Option. Subject to and under the terms and conditions set
forth in this Agreement and the Plan, the Participant is the owner of an option
(the "Option") to purchase from the Partnership the number of Units set forth in
Section 1 of Exhibit A attached hereto at the per Unit price set forth in
Section 2 of Exhibit A.
2. Term and Exercise Schedule. This Option shall not be exercisable to any
extent prior to December 10, 1999 or after December 10, 2008 (the "Expiration
Date"). Subject to the terms and conditions of this Agreement and the Plan, the
Participant shall be entitled to exercise the Option prior to the Expiration
Date and to purchase Units hereunder in accordance with the schedule set forth
in Section 3 of Exhibit A.
The right to exercise this Option shall be cumulative so that to the
extent this Option is not exercised when it becomes initially exercisable with
respect to any Units, it shall be exercisable with respect to such Units at any
time thereafter until the Expiration Date and any Units subject to this Option
which have not then been purchased may not, thereafter, be purchased hereunder.
A Unit shall be considered to have been purchased on or before the Expiration
Date if the Partnership has been given notice of the purchase and the
Partnership has actually received payment therefor pursuant to Sections 3 and
14, on or before the Expiration Date.
<PAGE>
-2-
3. Notice of Exercise, Payment and Certificate. Exercise of this Option,
in whole or in part, shall be by delivery of a written notice to the Partnership
pursuant to Section 14 which specifies the number of Units being purchased and
is accompanied by payment therefor in cash. Promptly after receipt of such
notice and purchase price, the Partnership shall deliver to the person
exercising the Option a certificate for the number of Units purchased. Units to
be issued upon the exercise of this Option may be either authorized and unissued
Units or Units which have been reacquired by the Partnership.
4. Termination of Employment. This Option may be exercised by an Employee
Participant only while the Employee Participant is employed full-time by the
Partnership, except as follows:
(a) Disability. If the Employee Participant's employment with the
Partnership terminates because of Disability, the Employee Participant (or
his personal representative) shall have the right to exercise this Option,
to the extent that the Employee Participant was entitled to do so on the
date of termination of his employment, for a period which ends not later
than the earlier of (i) three months after such termination, and (ii) the
Expiration Date. "Disability" shall mean a determination by the
Administrator that the Employee Participant is physically or mentally
incapacitated and has been unable for a period of six consecutive months
to perform the duties for which he was responsible immediately before the
onset of his incapacity. In order to assist the Administrator in making a
determination as to the Disability of the Employee Participant for
purposes of this paragraph (a), the Employee Participant shall, as
reasonably requested by the Administrator, (A) make himself available for
medical examinations by one or more physicians chosen by the Administrator
and approved by the Employee Participant, whose approval shall not
unreasonably be withheld, and (B) grant the Administrator and any such
physicians access to all relevant medical information concerning him,
arrange to furnish copies of medical records to them, and use his best
efforts to cause his own physicians to be available to discuss his health
with them.
(b) Death. If the Employee Participant dies (i) while in the employ
of the Partnership, (ii) within one month after termination of his
employment with the Partnership because of Disability (as determined in
accordance with paragraph (a) above), or (iii) within one month after the
Partnership terminates his employment for any reason other than for Cause
(as determined in accordance with paragraph (c) below), this Option may be
exercised, to the extent that the Employee Participant was entitled to do
so on the date of his death, by the person or persons to whom the Option
shall have been transferred by will or by the laws of descent and
distribution, for a period which ends not later than the earlier of (A)
six months from the date of the Employee Participant's death, and (B) the
Expiration Date.
<PAGE>
-3-
(c) Other Termination. If the Partnership terminates the Employee
Participant's employment for any reason other than death, Disability or
for Cause, the Employee Participant shall have the right to exercise this
Option, to the extent that he was entitled to do so on the date of the
termination of his employment, for a period which ends not later than the
earlier of (i) three months after such termination, and (ii) the
Expiration Date. "Cause" shall mean (A) the Employee Participant's
continuing willful failure to perform his duties as an employee (other
than as a result of his total or partial incapacity due to physical or
mental illness), (B) gross negligence or malfeasance in the performance of
the Employee Participant's duties, (c) a finding by a court or other
governmental body with proper jurisdiction that an act or acts by the
Employee Participant constitutes (1) a felony under the laws of the United
States or any state thereof (or, if the Employee Participant's place of
employment is outside of the United States, a serious crime under the laws
of the foreign jurisdiction where he is employed, which crime if committed
in the United States would be a felony under the laws of the United States
or the laws of New York), or (2) a violation of federal or state
securities law (or, if the Employee Participant's place of employment is
outside of the United States, of federal, state or foreign securities law)
by reason of which finding of violation described in this clause (2) the
Board determines in good faith that the continued employment of the
Employee Participant by the Partnership would be seriously detrimental to
the Partnership and its business, (D) in the absence of such a finding by
a court or other governmental body with proper jurisdiction, such a
determination in good faith by the Board by reason of such act or acts
constituting such a felony, serious crime or violation, or (E) any breach
by the Employee Participant of any obligation of confidentiality or
non-competition to the Partnership.
For purposes of this Agreement, employment by a subsidiary of the
Partnership shall be deemed to be employment by the Partnership. A "subsidiary"
of the Partnership shall be any corporation or other entity of which the
Partnership and/or its subsidiaries (a) have sufficient voting power (not
depending on the happening of a contingency) to elect at least a majority of its
board of directors, or (b) otherwise have the power to direct or cause the
direction of its management and policies.
<PAGE>
-4-
5. Termination of Service as a Director. The Option may be exercised by a
Director Participant only while the Director Participant serves on the Board;
except upon termination of a Director Participant's service by reason of such
Director Participant's voluntary mid-term resignation, declining to stand for
re-election (whether as a result of the general partner's mandatory retirement
program or otherwise), becoming an employee of the Partnership or a subsidiary
thereof or because of Disability, all outstanding options held by such Director
Participant on the date of such termination shall expire five years from the
date upon which such Director Participant's service terminates. In the event of
death of a Director Participant (whether before or after termination of
service), all outstanding options held by such Director Participant (and not
previously canceled or expired) on the date of death shall be fully exercisable
by the Director Participant's legal representative within one year of the date
of death (without regard to the expiration date of the Option specified in the
preceding sentence).
6. No Right to Continued Employment or Directorship. This Option shall not
confer upon the Participant any right to continue in the employ of the
Partnership or any subsidiary of the Partnership or to be retained as a
Director, and shall not interfere in any way with the right of the Partnership
to terminate the service of the Participant at any time for any reason.
7. Non-Transferability. This Option is not transferable other than by will
or the laws of descent and distribution and, except as otherwise provided in
Section 4, during the lifetime of the Participant this Option is exercisable
only by the Participant; except that a Participant may transfer this Option,
without consideration, subject to such rules as the Committee may adopt to
preserve the purposes of the Plan (including limiting such transfers to
transfers by Participants who are Director Participants or senior executives),
to a trust solely for the benefit of the Participant and the Participant's
spouse, children or grandchildren (including adopted and stepchildren and
grandchildren) (each a "Permitted Transferee").
8. Payment of Withholding Tax. (a) In the event that the Partnership
determines that any federal, state or local tax or any other charge is required
by law to be withheld with respect to the exercise of this Option, the
Participant shall promptly pay to the Partnership or a subsidiary specified by
the Partnership, on at least seven business days' notice from the Partnership,
an amount equal to such withholding tax or charge or (b) if the Participant does
not promptly so pay the entire amount of such withholding tax or charge in
accordance with such notice, or make arrangements satisfactory to the
Partnership regarding payment thereof, the Partnership or any subsidiary of the
Partnership may withhold the remaining amount thereof from any amount due the
Participant from the Partnership or the subsidiary.
<PAGE>
-5-
9. Dilution and Other Adjustments. The existence of this Option shall not
impair the right of the Partnership or its partners to, among other things,
conduct, make or effect any change in the Partnership's business, any
distribution (whether in the form of cash, limited partnership interests, other
securities or other property), recapitalization (including, without limitation,
any subdivision or combination of limited partnership interests),
reorganization, consolidation, combination, repurchase or exchange of limited
partnership interests or other securities of the Partnership, issuance of
warrants or other rights to purchase limited partnership interests or other
securities of the Partnership, or any incorporation of the Partnership. In the
event of such a change in the partnership interests of the Partnership, the
Board shall make such adjustments to this Option, including the purchase price
specified in Section 1, as it deems appropriate and equitable. In the event of
incorporation of the Partnership, the Board shall make such arrangements as it
deems appropriate and equitable with respect to this Option for the Participant
to purchase stock in the resulting corporation in place of the Units subject to
this Option. Any such adjustment or arrangement may provide for the elimination
of any fractional Unit or shares of stock which might otherwise become subject
to this Option. Any decision by the Board under this Section shall be final and
binding upon the Participant.
10. Rights as an Owner of a Unit. The Participant (or a transferee of this
Option pursuant to Sections 4 and 7) shall have no rights as an owner of a Unit
with respect to any Unit covered by this Option until he becomes the holder of
record of such Unit, which shall be deemed to occur at the time that notice of
purchase is given and payment in full is received by the Partnership under
Section 3 and 14. By such actions, the Participant (or such transferee) shall be
deemed to have consented to, and agreed to be bound by, all other terms,
conditions, rights and obligations set forth in the then current Agreement of
Limited Partnership (as Amended and Restated) of the Partnership. Except as
provided in Section 9, no adjustment shall be made with respect to any Unit for
any distribution for which the record date is prior to the date on which the
Participant becomes the holder of record of the Unit, regardless of whether the
distribution is ordinary or extraordinary, in cash, securities or other
property, or of any other rights.
11. Administrator. If at any time there shall be no 1997 Option Committee
of the Board, the Board shall be the Administrator.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
<PAGE>
-6-
13. Interpretation. The Participant accepts this Option subject to all the
terms and provisions of the Plan, which shall control in the event of any
conflict between any provision of the Plan and this Agreement, and accepts as
binding, conclusive and final all decisions or interpretations of the Board or
the Administrator upon any questions arising under the Plan and/or this
Agreement.
14. Notices. Any notice under this Agreement shall be in writing and shall
be deemed to have been duly given when delivered personally or when deposited in
the United States mail, registered, postage prepaid, and addressed, in the case
of the Partnership, to the Secretary of Alliance Capital Management Corporation
at 1345 Avenue of the Americas, New York, New York 10105, or if the Partnership
should move its principal office, to such principal office, and, in the case of
the Participant, to his last permanent address as shown on the Partnership's
records, subject to the right of either party to designate some other address at
any time hereafter in a notice satisfying the requirements of this Section.
<PAGE>
-7-
15. Sections and Headings. All section references in this Agreement are to
sections hereof for convenience of reference only and are not to affect the
meaning of any provision of this Agreement.
ALLIANCE CAPITAL MANAGEMENT L.P.
By Alliance Capital Management
Corporation, General Partner
By /s/ Dave H. Williams
-------------------------------
Dave H. Williams
Chairman of the Board
/s/ Bruce W. Calvert
-------------------------------
Bruce W. Calvert
AC Options
<PAGE>
Exhibit A To Unit Option Plan Agreement Dated December 10, 1998
between Alliance Capital Management L.P. and Bruce W. Calvert
1. The number of Units that the Participant is entitled to purchase
pursuant to the Option granted under this Agreement is 500,000.
2. The per Unit price to purchase Units pursuant to the Option granted
under this Agreement is $26.3125 per Unit.
3. Percentage of Units With Respect to
Which the Option First Becomes
Exercisable on the Date Indicated
<TABLE>
<CAPTION>
<S> <C>
1. December 10, 1999 20%
2. December 10, 2000 20%
3. December 10, 2001 20%
4. December 10, 2002 20%
5. December 10, 2003 20%
</TABLE>
<PAGE>
ALLIANCE CAPITAL MANAGEMENT L.P.
UNIT OPTION PLAN AGREEMENT
AGREEMENT, dated December 10, 1998 between Alliance Capital Management
L.P. (the "Partnership") and John D. Carifa (the "Participant"), an employee of
the Partnership or a subsidiary of the Partnership (an "Employee Participant")
or a member of the Board of Directors of Alliance Capital Management Corporation
(the "Board"), the general partner of the Partnership (a "Director
Participant").
The 1997 Option Committee (the "Administrator") of the Board, pursuant to
the Alliance Capital Management L.P. 1997 Long Term Incentive Plan, a copy of
which has been delivered to the Participant (the "Plan"), has granted to the
Participant an option to purchase units representing assignments of the
beneficial ownership of limited partnership interests in the Partnership (the
"Units") as hereinafter set forth, and authorized the execution and delivery of
this Agreement.
In accordance with that grant, and as a condition thereto, the Partnership
and the Participant agree as follows:
1. Grant of Option. Subject to and under the terms and conditions set
forth in this Agreement and the Plan, the Participant is the owner of an option
(the "Option") to purchase from the Partnership the number of Units set forth in
Section 1 of Exhibit A attached hereto at the per Unit price set forth in
Section 2 of Exhibit A.
2. Term and Exercise Schedule. This Option shall not be exercisable to any
extent prior to December 10, 1999 or after December 10, 2008 (the "Expiration
Date"). Subject to the terms and conditions of this Agreement and the Plan, the
Participant shall be entitled to exercise the Option prior to the Expiration
Date and to purchase Units hereunder in accordance with the schedule set forth
in Section 3 of Exhibit A.
The right to exercise this Option shall be cumulative so that to the
extent this Option is not exercised when it becomes initially exercisable with
respect to any Units, it shall be exercisable with respect to such Units at any
time thereafter until the Expiration Date and any Units subject to this Option
which have not then been purchased may not, thereafter, be purchased hereunder.
A Unit shall be considered to have been purchased on or before the Expiration
Date if the Partnership has been given notice of the purchase and the
Partnership has actually received payment therefor pursuant to Sections 3 and
14, on or before the Expiration Date.
<PAGE>
-2-
3. Notice of Exercise, Payment and Certificate. Exercise of this Option,
in whole or in part, shall be by delivery of a written notice to the Partnership
pursuant to Section 14 which specifies the number of Units being purchased and
is accompanied by payment therefor in cash. Promptly after receipt of such
notice and purchase price, the Partnership shall deliver to the person
exercising the Option a certificate for the number of Units purchased. Units to
be issued upon the exercise of this Option may be either authorized and unissued
Units or Units which have been reacquired by the Partnership.
4. Termination of Employment. This Option may be exercised by an Employee
Participant only while the Employee Participant is employed full-time by the
Partnership, except as follows:
(a) Disability. If the Employee Participant's employment with the
Partnership terminates because of Disability, the Employee Participant (or
his personal representative) shall have the right to exercise this Option,
to the extent that the Employee Participant was entitled to do so on the
date of termination of his employment, for a period which ends not later
than the earlier of (i) three months after such termination, and (ii) the
Expiration Date. "Disability" shall mean a determination by the
Administrator that the Employee Participant is physically or mentally
incapacitated and has been unable for a period of six consecutive months
to perform the duties for which he was responsible immediately before the
onset of his incapacity. In order to assist the Administrator in making a
determination as to the Disability of the Employee Participant for
purposes of this paragraph (a), the Employee Participant shall, as
reasonably requested by the Administrator, (A) make himself available for
medical examinations by one or more physicians chosen by the Administrator
and approved by the Employee Participant, whose approval shall not
unreasonably be withheld, and (B) grant the Administrator and any such
physicians access to all relevant medical information concerning him,
arrange to furnish copies of medical records to them, and use his best
efforts to cause his own physicians to be available to discuss his health
with them.
(b) Death. If the Employee Participant dies (i) while in the employ
of the Partnership, (ii) within one month after termination of his
employment with the Partnership because of Disability (as determined in
accordance with paragraph (a) above), or (iii) within one month after the
Partnership terminates his employment for any reason other than for Cause
(as determined in accordance with paragraph (c) below), this Option may be
exercised, to the extent that the Employee Participant was entitled to do
so on the date of his death, by the person or persons to whom the Option
shall have been transferred by will or by the laws of descent and
distribution, for a period which ends not later than the earlier of (A)
six months from the date of the Employee Participant's death, and (B) the
Expiration Date.
<PAGE>
-3-
(c) Other Termination. If the Partnership terminates the Employee
Participant's employment for any reason other than death, Disability or
for Cause, the Employee Participant shall have the right to exercise this
Option, to the extent that he was entitled to do so on the date of the
termination of his employment, for a period which ends not later than the
earlier of (i) three months after such termination, and (ii) the
Expiration Date. "Cause" shall mean (A) the Employee Participant's
continuing willful failure to perform his duties as an employee (other
than as a result of his total or partial incapacity due to physical or
mental illness), (B) gross negligence or malfeasance in the performance of
the Employee Participant's duties, (c) a finding by a court or other
governmental body with proper jurisdiction that an act or acts by the
Employee Participant constitutes (1) a felony under the laws of the United
States or any state thereof (or, if the Employee Participant's place of
employment is outside of the United States, a serious crime under the laws
of the foreign jurisdiction where he is employed, which crime if committed
in the United States would be a felony under the laws of the United States
or the laws of New York), or (2) a violation of federal or state
securities law (or, if the Employee Participant's place of employment is
outside of the United States, of federal, state or foreign securities law)
by reason of which finding of violation described in this clause (2) the
Board determines in good faith that the continued employment of the
Employee Participant by the Partnership would be seriously detrimental to
the Partnership and its business, (D) in the absence of such a finding by
a court or other governmental body with proper jurisdiction, such a
determination in good faith by the Board by reason of such act or acts
constituting such a felony, serious crime or violation, or (E) any breach
by the Employee Participant of any obligation of confidentiality or
non-competition to the Partnership.
For purposes of this Agreement, employment by a subsidiary of the
Partnership shall be deemed to be employment by the Partnership. A "subsidiary"
of the Partnership shall be any corporation or other entity of which the
Partnership and/or its subsidiaries (a) have sufficient voting power (not
depending on the happening of a contingency) to elect at least a majority of its
board of directors, or (b) otherwise have the power to direct or cause the
direction of its management and policies.
<PAGE>
-4-
5. Termination of Service as a Director. The Option may be exercised by a
Director Participant only while the Director Participant serves on the Board;
except upon termination of a Director Participant's service by reason of such
Director Participant's voluntary mid-term resignation, declining to stand for
re-election (whether as a result of the general partner's mandatory retirement
program or otherwise), becoming an employee of the Partnership or a subsidiary
thereof or because of Disability, all outstanding options held by such Director
Participant on the date of such termination shall expire five years from the
date upon which such Director Participant's service terminates. In the event of
death of a Director Participant (whether before or after termination of
service), all outstanding options held by such Director Participant (and not
previously canceled or expired) on the date of death shall be fully exercisable
by the Director Participant's legal representative within one year of the date
of death (without regard to the expiration date of the Option specified in the
preceding sentence).
6. No Right to Continued Employment or Directorship. This Option shall not
confer upon the Participant any right to continue in the employ of the
Partnership or any subsidiary of the Partnership or to be retained as a
Director, and shall not interfere in any way with the right of the Partnership
to terminate the service of the Participant at any time for any reason.
7. Non-Transferability. This Option is not transferable other than by will
or the laws of descent and distribution and, except as otherwise provided in
Section 4, during the lifetime of the Participant this Option is exercisable
only by the Participant; except that a Participant may transfer this Option,
without consideration, subject to such rules as the Committee may adopt to
preserve the purposes of the Plan (including limiting such transfers to
transfers by Participants who are Director Participants or senior executives),
to a trust solely for the benefit of the Participant and the Participant's
spouse, children or grandchildren (including adopted and stepchildren and
grandchildren) (each a "Permitted Transferee").
8. Payment of Withholding Tax. (a) In the event that the Partnership
determines that any federal, state or local tax or any other charge is required
by law to be withheld with respect to the exercise of this Option, the
Participant shall promptly pay to the Partnership or a subsidiary specified by
the Partnership, on at least seven business days' notice from the Partnership,
an amount equal to such withholding tax or charge or (b) if the Participant does
not promptly so pay the entire amount of such withholding tax or charge in
accordance with such notice, or make arrangements satisfactory to the
Partnership regarding payment thereof, the Partnership or any subsidiary of the
Partnership may withhold the remaining amount thereof from any amount due the
Participant from the Partnership or the subsidiary.
<PAGE>
-5-
9. Dilution and Other Adjustments. The existence of this Option shall not
impair the right of the Partnership or its partners to, among other things,
conduct, make or effect any change in the Partnership's business, any
distribution (whether in the form of cash, limited partnership interests, other
securities or other property), recapitalization (including, without limitation,
any subdivision or combination of limited partnership interests),
reorganization, consolidation, combination, repurchase or exchange of limited
partnership interests or other securities of the Partnership, issuance of
warrants or other rights to purchase limited partnership interests or other
securities of the Partnership, or any incorporation of the Partnership. In the
event of such a change in the partnership interests of the Partnership, the
Board shall make such adjustments to this Option, including the purchase price
specified in Section 1, as it deems appropriate and equitable. In the event of
incorporation of the Partnership, the Board shall make such arrangements as it
deems appropriate and equitable with respect to this Option for the Participant
to purchase stock in the resulting corporation in place of the Units subject to
this Option. Any such adjustment or arrangement may provide for the elimination
of any fractional Unit or shares of stock which might otherwise become subject
to this Option. Any decision by the Board under this Section shall be final and
binding upon the Participant.
10. Rights as an Owner of a Unit. The Participant (or a transferee of this
Option pursuant to Sections 4 and 7) shall have no rights as an owner of a Unit
with respect to any Unit covered by this Option until he becomes the holder of
record of such Unit, which shall be deemed to occur at the time that notice of
purchase is given and payment in full is received by the Partnership under
Section 3 and 14. By such actions, the Participant (or such transferee) shall be
deemed to have consented to, and agreed to be bound by, all other terms,
conditions, rights and obligations set forth in the then current Agreement of
Limited Partnership (as Amended and Restated) of the Partnership. Except as
provided in Section 9, no adjustment shall be made with respect to any Unit for
any distribution for which the record date is prior to the date on which the
Participant becomes the holder of record of the Unit, regardless of whether the
distribution is ordinary or extraordinary, in cash, securities or other
property, or of any other rights.
11. Administrator. If at any time there shall be no 1997 Option Committee
of the Board, the Board shall be the Administrator.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
<PAGE>
-6-
13. Interpretation. The Participant accepts this Option subject to all the
terms and provisions of the Plan, which shall control in the event of any
conflict between any provision of the Plan and this Agreement, and accepts as
binding, conclusive and final all decisions or interpretations of the Board or
the Administrator upon any questions arising under the Plan and/or this
Agreement.
14. Notices. Any notice under this Agreement shall be in writing and shall
be deemed to have been duly given when delivered personally or when deposited in
the United States mail, registered, postage prepaid, and addressed, in the case
of the Partnership, to the Secretary of Alliance Capital Management Corporation
at 1345 Avenue of the Americas, New York, New York 10105, or if the Partnership
should move its principal office, to such principal office, and, in the case of
the Participant, to his last permanent address as shown on the Partnership's
records, subject to the right of either party to designate some other address at
any time hereafter in a notice satisfying the requirements of this Section.
<PAGE>
-7-
15. Sections and Headings. All section references in this Agreement are to
sections hereof for convenience of reference only and are not to affect the
meaning of any provision of this Agreement.
ALLIANCE CAPITAL MANAGEMENT L.P.
By Alliance Capital Management
Corporation, General Partner
By /s/ Dave H. Williams
--------------------------------
Dave H. Williams
Chairman of the Board
/s/ John D. Carifa
--------------------------------
John D. Carifa
AC Options
<PAGE>
Exhibit A To Unit Option Plan Agreement Dated December 10, 1998
between Alliance Capital Management L.P. and John D. Carifa
1. The number of Units that the Participant is entitled to purchase
pursuant to the Option granted under this Agreement is 500,000.
2. The per Unit price to purchase Units pursuant to the Option granted
under this Agreement is $26.3125 per Unit.
3. Percentage of Units With Respect to
Which the Option First Becomes
Exercisable on the Date Indicated
<TABLE>
<CAPTION>
<S> <C>
1. December 10, 1999 20%
2. December 10, 2000 20%
3. December 10, 2001 20%
4. December 10, 2002 20%
5. December 10, 2003 20%
</TABLE>
<PAGE>
ALLIANCE CAPITAL MANAGEMENT L.P.
UNIT OPTION PLAN AGREEMENT
AGREEMENT, dated December 10, 1998 between Alliance Capital Management
L.P. (the "Partnership") and Robert H. Joseph, Jr. (the "Employee"), an
employee of the Partnership or a subsidiary of the Partnership.
The Option Committee (the "Administrator") of the Board of Directors of
Alliance Capital Management Corporation, the general partner of the Partnership
(the "Board"), pursuant to the Alliance Capital Management L.P. 1993 Unit Option
Plan, a copy of which has been delivered to the Employee (the "Plan"), granted
to the Employee an option to purchase units representing assignments of
beneficial ownership of limited partnership interests in the Partnership (the
"Units") as hereinafter set forth, and authorized the execution and delivery of
this Agreement.
In accordance with that grant, and as a condition thereto, the Partnership
and the Employee agree as follows:
1. Grant of Option. Subject to and under the terms and conditions set
forth in this Agreement and the Plan, the Employee is the owner of an option
(the "Option") to purchase from the Partnership the number of Units set forth in
Section 1 of Exhibit A attached hereto at the per Unit price set forth in
Section 2 of Exhibit A.
2. Term and Exercise Schedule. This Option shall not be exercisable to any
extent prior to December 10, 1999 or after December 10, 2008 (the "Expiration
Date"). Subject to the terms and conditions of this Agreement and the Plan, the
Employee shall be entitled to exercise the Option prior to the Expiration Date
and to purchase Units hereunder in accordance with the schedule set forth in
Section 3 of Exhibit A.
The right to exercise this Option shall be cumulative so that to the
extent this Option is not exercised when it becomes initially exercisable with
respect to any Units, it shall be exercisable with respect to such Units at any
time thereafter until the Expiration Date and any Units subject to this Option
which have not then been purchased may not, thereafter, be purchased hereunder.
A Unit shall be considered to have been purchased on or before the Expiration
Date if the Partnership has been given notice of the purchase pursuant to
Sections 3 and 13, and the Partnership has actually received payment for the
Unit on or before the Expiration Date.
<PAGE>
-2-
3. Notice of Exercise, Payment and Certificate. Exercise of this Option,
in whole or in part, shall be by delivery of a written notice to the Partnership
pursuant to Section 13 which specifies the number of Units being purchased and
is accompanied by payment therefor in cash. Promptly after receipt of such
notice and purchase price, the Partnership shall deliver to the person
exercising the Option a certificate for the number of Units purchased. Units to
be issued upon the exercise of this Option may be either authorized and unissued
Units or Units which have been reacquired by the Partnership.
4. Termination of Employment. This Option may be exercised only while the
Employee is a full-time employee of the Partnership, except as follows:
(a) Disability. If the Employee's employment with the Partnership
terminates because of Disability, the Employee (or his personal
representative) shall have the right to exercise this Option, to the
extent that the Employee was entitled to do so on the date of termination
of his employment, for a period which ends not later than the earlier of
(i) three months after such termination, and (ii) the Expiration Date.
"Disability" shall mean a determination by the Administrator that the
Employee is physically or mentally incapacitated and has been unable for a
period of six consecutive months to perform the duties for which he was
responsible immediately before the onset of his incapacity. In order to
assist the Administrator in making a determination as to the Disability of
the Employee for purposes of this paragraph (a), the Employee shall, as
reasonably requested by the Administrator, (A) make himself available for
medical examinations by one or more physicians chosen by the Administrator
and approved by the Employee, whose approval shall not unreasonably be
withheld, and (B) grant the Administrator and any such physicians access
to all relevant medical information concerning him, arrange to furnish
copies of medical records to them, and use his best efforts to cause his
own physicians to be available to discuss his health with them.
(b) Death. If the Employee dies (i) while in the employ of the
Partnership, (ii) within one month after termination of his employment
with the Partnership because of Disability (as determined in accordance
with paragraph (a) above), or (iii) within one month after the Partnership
terminates his employment for any reason other than for Cause (as
determined in accordance with paragraph (c) below), this Option may be
exercised, to the extent that the Employee was entitled to do so on the
date of his death, by the person or persons to whom the Option shall have
been transferred by will or by the laws of descent and distribution, for a
period which ends not later than the earlier of (A) six months from the
date of the Employee" death, and (B) the Expiration Date.
<PAGE>
-3-
(c) Other Termination. If the Partnership terminates the Employee's
employment for any reason other than death, Disability or for Cause, the
Employee shall have the right to exercise this Option, to the extent that
he was entitled to do so on the date of the termination of his employment,
for a period which ends not later than the earlier of (I) three months
after such termination, and (ii) the Expiration Date. "Cause" shall mean
(A) the Employee's continuing willful failure to perform his duties as an
employee (other than as a result of his total or partial incapacity due to
physical or mental illness), (B) gross negligence or malfeasance in the
performance of the Employee's duties, (C) a finding by a court or other
governmental body with proper jurisdiction that an act or acts by the
Employee constitutes (1) a felony under the laws of the United States or
any state thereof (or, if the Employee's place of employment is outside of
the United States, a serious crime under the laws of the foreign
jurisdiction where he is employed, which crime if committed in the United
States would be a felony under the laws of the United States or the laws
of New York), or (2) a violation of federal or state securities law (or,
if the Employee's place of employment is outside of the United States, of
federal, state or foreign securities law) by reason of which finding of
violation described in this clause (2) the Board determines in good faith
that the continued employment of the Employee by the Partnership would be
seriously detrimental to the Partnership and its business, (D) in the
absence of such a finding by a court or other governmental body with
proper jurisdiction, such a determination in good faith by the Board by
reason of such act or acts constituting such a felony, serious crime or
violation, or (E) any breach by the Employee of any obligation of
confidentiality or non-competition to the Partnership.
For purposes of this Agreement, employment by a subsidiary of the
Partnership shall be deemed to be employment by the Partnership. A "subsidiary"
of the Partnership shall be any corporation or other entity of which the
Partnership and/or its subsidiaries (a) have sufficient voting power (not
depending on the happening of a contingency) to elect at least a majority of its
board of directors, or (b) otherwise have the power to direct or cause the
direction of its management and policies.
5. Non-Transferability. This Option is not transferable other than by will
or the laws of descent and distribution and, except as otherwise provided in
Section 4, during the lifetime of the Employee this Option is exercisable only
by the Employee.
6. No Right to Continued Employment. This Option shall not confer upon the
Employee any right to continue in the employ of the Partnership or interfere in
any way with the right of the Partnership to terminate the employment of the
Employee at any time for any reason.
<PAGE>
-4-
7. Payment of Withholding Tax. (a) In the event that the Partnership
determines that any federal, state or local tax or any other charge is required
by law to be withheld with respect to the exercise of this Option, the Employee
shall promptly pay to the Partnership or a subsidiary specified by the
Partnership, on at least seven business days' notice from the Partnership, an
amount equal to such withholding tax or charge or (b) if the Employee does not
promptly so pay the entire amount of such withholding tax or charge in
accordance with such notice, or make arrangements satisfactory to the
Partnership regarding payment thereof, the Partnership or any subsidiary of the
Partnership may withhold the remaining amount thereof from any amount due the
Employee from the Partnership or the subsidiary.
8. Dilution and Other Adjustments. The existence of this Option shall not
impair the right of the Partnership or its partners to, among other things,
conduct, make or effect any change in the Partnership's business, any issuance
of debt obligations or other securities by the Partnership, any grant of options
with respect to an interest in the Partnership or any adjustment,
recapitalization or other change in the partnership interests of the Partnership
(including, without limitation, any distribution, subdivision, or combination of
limited partnership interests), or any incorporation of the Partnership. In the
event of such a change in the partnership interests of the Partnership, the
Board shall make such adjustments to this Option, including the purchase price
specified in Section 1, as it deems appropriate and equitable. In the event of
incorporation of the Partnership, the Board shall make such arrangements as it
deems appropriate and equitable with respect to this Option for the Employee to
purchase stock in the resulting corporation in place of the Units subject to
this Option. Any such adjustment or arrangement may provide for the elimination
of any fractional Unit or shares of stock which might otherwise become subject
to this Option. Any decision by the Board under this Section shall be final and
binding upon the Employee.
9. Rights as an Owner of a Unit. The Employee (or a transferee of this
Option pursuant to Section 4) shall have no rights as an owner of a Unit with
respect to any Unit covered by this Option until he becomes the holder of record
of such Unit, which shall be deemed to occur at the time that notice of purchase
is given and payment in full is received by the Partnership under Section 3 and
13. By such actions, the Employee (or such transferee) shall be deemed to have
consented to, and agreed to be bound by, all other terms, conditions, rights and
obligations set forth in the then current Agreement of Limited Partnership (As
Amended and Restated) of the Partnership. Except as provided in Section 8, no
adjustment shall be made with respect to any Unit for any distribution for which
the record date is prior to the date on which the Employee becomes the holder of
record of the Unit, regardless of whether the distribution is ordinary or
extraordinary, in cash, securities or other property, or of any other rights.
<PAGE>
-5-
10. Administrator. If at any time there shall be no Option Committee
of the Board, the Board shall be the Administrator.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Interpretation. The Employee accepts this Option subject to all the
terms and provisions of the Plan, which shall control in the event of any
conflict between any provision of the Plan and this Agreement, and accepts as
binding, conclusive and final all decisions or interpretations of the Board or
the Administrator upon any questions arising under the Plan and/or this
Agreement.
13. Notices. Any notice under this Agreement shall be in writing and shall
be deemed to have been duly given when delivered personally or when deposited in
the United States mail, registered, postage prepaid, and addressed, in the case
of the Partnership, to the Secretary of Alliance Capital Management Corporation
at 1345 Avenue of the Americas, New York, New York 10105, or if the Partnership
should move its principal office, to such principal office, and, in the case of
the Employee, to his last permanent address as shown on the Partnership's
records, subject to the right of either party to designate some other address at
any time hereafter in a notice satisfying the requirements of this Section.
<PAGE>
-6-
14. Sections and Headings. All section references in this Agreement are to
sections hereof for convenience of reference only and are not to affect the
meaning of any provision of this Agreement.
ALLIANCE CAPITAL MANAGEMENT L.P.
By Alliance Capital Management
Corporation, General Partner
By /s/ John D. Carifa
-------------------------------
John D. Carifa
President
/s/ Robert H. Joseph, Jr.
-------------------------------
Robert H. Joseph, Jr.
AC Options
<PAGE>
Exhibit A To Unit Option Plan Agreement Dated December 10, 1998
between Alliance Capital Management L.P. and Robert H. Joseph, Jr.
1. The number of Units that the Employee is entitled to purchase
pursuant to the Option granted under this Agreement is 20,000.
2. The per Unit price to purchase Units pursuant to the Option granted
under this Agreement is $26.3125 per Unit.
3. Percentage of Units With Respect to
Which the Option First Becomes
Exercisable on the Date Indicated
<TABLE>
<CAPTION>
<S> <C>
1. December 10, 1999 20%
2. December 10, 2000 20%
3. December 10, 2001 20%
4. December 10, 2002 20%
5. December 10, 2003 20%
</TABLE>
<PAGE>
ALLIANCE CAPITAL MANAGEMENT L.P.
UNIT OPTION PLAN AGREEMENT
AGREEMENT, dated December 10, 1998 between Alliance Capital Management
L.P. (the "Partnership") and David R. Brewer, Jr. (the "Employee"), an employee
of the Partnership or a subsidiary of the Partnership.
The Option Committee (the "Administrator") of the Board of Directors of
Alliance Capital Management Corporation, the general partner of the Partnership
(the "Board"), pursuant to the Alliance Capital Management L.P. 1993 Unit Option
Plan, a copy of which has been delivered to the Employee (the "Plan"), granted
to the Employee an option to purchase units representing assignments of
beneficial ownership of limited partnership interests in the Partnership (the
"Units") as hereinafter set forth, and authorized the execution and delivery of
this Agreement.
In accordance with that grant, and as a condition thereto, the Partnership
and the Employee agree as follows:
1. Grant of Option. Subject to and under the terms and conditions set
forth in this Agreement and the Plan, the Employee is the owner of an option
(the "Option") to purchase from the Partnership the number of Units set forth in
Section 1 of Exhibit A attached hereto at the per Unit price set forth in
Section 2 of Exhibit A.
2. Term and Exercise Schedule. This Option shall not be exercisable to any
extent prior to December 10, 1999 or after December 10, 2008 (the "Expiration
Date"). Subject to the terms and conditions of this Agreement and the Plan, the
Employee shall be entitled to exercise the Option prior to the Expiration Date
and to purchase Units hereunder in accordance with the schedule set forth in
Section 3 of Exhibit A.
The right to exercise this Option shall be cumulative so that to the
extent this Option is not exercised when it becomes initially exercisable with
respect to any Units, it shall be exercisable with respect to such Units at any
time thereafter until the Expiration Date and any Units subject to this Option
which have not then been purchased may not, thereafter, be purchased hereunder.
A Unit shall be considered to have been purchased on or before the Expiration
Date if the Partnership has been given notice of the purchase pursuant to
Sections 3 and 13, and the Partnership has actually received payment for the
Unit on or before the Expiration Date.
<PAGE>
-2-
3. Notice of Exercise, Payment and Certificate. Exercise of this Option,
in whole or in part, shall be by delivery of a written notice to the Partnership
pursuant to Section 13 which specifies the number of Units being purchased and
is accompanied by payment therefor in cash. Promptly after receipt of such
notice and purchase price, the Partnership shall deliver to the person
exercising the Option a certificate for the number of Units purchased. Units to
be issued upon the exercise of this Option may be either authorized and unissued
Units or Units which have been reacquired by the Partnership.
4. Termination of Employment. This Option may be exercised only while the
Employee is a full-time employee of the Partnership, except as follows:
(a) Disability. If the Employee's employment with the Partnership
terminates because of Disability, the Employee (or his personal
representative) shall have the right to exercise this Option, to the
extent that the Employee was entitled to do so on the date of termination
of his employment, for a period which ends not later than the earlier of
(i) three months after such termination, and (ii) the Expiration Date.
"Disability" shall mean a determination by the Administrator that the
Employee is physically or mentally incapacitated and has been unable for a
period of six consecutive months to perform the duties for which he was
responsible immediately before the onset of his incapacity. In order to
assist the Administrator in making a determination as to the Disability of
the Employee for purposes of this paragraph (a), the Employee shall, as
reasonably requested by the Administrator, (A) make himself available for
medical examinations by one or more physicians chosen by the Administrator
and approved by the Employee, whose approval shall not unreasonably be
withheld, and (B) grant the Administrator and any such physicians access
to all relevant medical information concerning him, arrange to furnish
copies of medical records to them, and use his best efforts to cause his
own physicians to be available to discuss his health with them.
(b) Death. If the Employee dies (i) while in the employ of the
Partnership, (ii) within one month after termination of his employment
with the Partnership because of Disability (as determined in accordance
with paragraph (a) above), or (iii) within one month after the Partnership
terminates his employment for any reason other than for Cause (as
determined in accordance with paragraph (c) below), this Option may be
exercised, to the extent that the Employee was entitled to do so on the
date of his death, by the person or persons to whom the Option shall have
been transferred by will or by the laws of descent and distribution, for a
period which ends not later than the earlier of (A) six months from the
date of the Employee" death, and (B) the Expiration Date.
<PAGE>
-3-
(c) Other Termination. If the Partnership terminates the Employee's
employment for any reason other than death, Disability or for Cause, the
Employee shall have the right to exercise this Option, to the extent that
he was entitled to do so on the date of the termination of his employment,
for a period which ends not later than the earlier of (I) three months
after such termination, and (ii) the Expiration Date. "Cause" shall mean
(A) the Employee's continuing willful failure to perform his duties as an
employee (other than as a result of his total or partial incapacity due to
physical or mental illness), (B) gross negligence or malfeasance in the
performance of the Employee's duties, (C) a finding by a court or other
governmental body with proper jurisdiction that an act or acts by the
Employee constitutes (1) a felony under the laws of the United States or
any state thereof (or, if the Employee's place of employment is outside of
the United States, a serious crime under the laws of the foreign
jurisdiction where he is employed, which crime if committed in the United
States would be a felony under the laws of the United States or the laws
of New York), or (2) a violation of federal or state securities law (or,
if the Employee's place of employment is outside of the United States, of
federal, state or foreign securities law) by reason of which finding of
violation described in this clause (2) the Board determines in good faith
that the continued employment of the Employee by the Partnership would be
seriously detrimental to the Partnership and its business, (D) in the
absence of such a finding by a court or other governmental body with
proper jurisdiction, such a determination in good faith by the Board by
reason of such act or acts constituting such a felony, serious crime or
violation, or (E) any breach by the Employee of any obligation of
confidentiality or non-competition to the Partnership.
For purposes of this Agreement, employment by a subsidiary of the
Partnership shall be deemed to be employment by the Partnership. A "subsidiary"
of the Partnership shall be any corporation or other entity of which the
Partnership and/or its subsidiaries (a) have sufficient voting power (not
depending on the happening of a contingency) to elect at least a majority of its
board of directors, or (b) otherwise have the power to direct or cause the
direction of its management and policies.
5. Non-Transferability. This Option is not transferable other than by will
or the laws of descent and distribution and, except as otherwise provided in
Section 4, during the lifetime of the Employee this Option is exercisable only
by the Employee.
6. No Right to Continued Employment. This Option shall not confer upon the
Employee any right to continue in the employ of the Partnership or interfere in
any way with the right of the Partnership to terminate the employment of the
Employee at any time for any reason.
<PAGE>
-4-
7. Payment of Withholding Tax. (a) In the event that the Partnership
determines that any federal, state or local tax or any other charge is required
by law to be withheld with respect to the exercise of this Option, the Employee
shall promptly pay to the Partnership or a subsidiary specified by the
Partnership, on at least seven business days' notice from the Partnership, an
amount equal to such withholding tax or charge or (b) if the Employee does not
promptly so pay the entire amount of such withholding tax or charge in
accordance with such notice, or make arrangements satisfactory to the
Partnership regarding payment thereof, the Partnership or any subsidiary of the
Partnership may withhold the remaining amount thereof from any amount due the
Employee from the Partnership or the subsidiary.
8. Dilution and Other Adjustments. The existence of this Option shall not
impair the right of the Partnership or its partners to, among other things,
conduct, make or effect any change in the Partnership's business, any issuance
of debt obligations or other securities by the Partnership, any grant of options
with respect to an interest in the Partnership or any adjustment,
recapitalization or other change in the partnership interests of the Partnership
(including, without limitation, any distribution, subdivision, or combination of
limited partnership interests), or any incorporation of the Partnership. In the
event of such a change in the partnership interests of the Partnership, the
Board shall make such adjustments to this Option, including the purchase price
specified in Section 1, as it deems appropriate and equitable. In the event of
incorporation of the Partnership, the Board shall make such arrangements as it
deems appropriate and equitable with respect to this Option for the Employee to
purchase stock in the resulting corporation in place of the Units subject to
this Option. Any such adjustment or arrangement may provide for the elimination
of any fractional Unit or shares of stock which might otherwise become subject
to this Option. Any decision by the Board under this Section shall be final and
binding upon the Employee.
9. Rights as an Owner of a Unit. The Employee (or a transferee of this
Option pursuant to Section 4) shall have no rights as an owner of a Unit with
respect to any Unit covered by this Option until he becomes the holder of record
of such Unit, which shall be deemed to occur at the time that notice of purchase
is given and payment in full is received by the Partnership under Section 3 and
13. By such actions, the Employee (or such transferee) shall be deemed to have
consented to, and agreed to be bound by, all other terms, conditions, rights and
obligations set forth in the then current Agreement of Limited Partnership (As
Amended and Restated) of the Partnership. Except as provided in Section 8, no
adjustment shall be made with respect to any Unit for any distribution for which
the record date is prior to the date on which the Employee becomes the holder of
record of the Unit, regardless of whether the distribution is ordinary or
extraordinary, in cash, securities or other property, or of any other rights.
<PAGE>
-5-
10. Administrator. If at any time there shall be no Option Committee of
the Board, the Board shall be the Administrator.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Interpretation. The Employee accepts this Option subject to all the
terms and provisions of the Plan, which shall control in the event of any
conflict between any provision of the Plan and this Agreement, and accepts as
binding, conclusive and final all decisions or interpretations of the Board or
the Administrator upon any questions arising under the Plan and/or this
Agreement.
13. Notices. Any notice under this Agreement shall be in writing and shall
be deemed to have been duly given when delivered personally or when deposited in
the United States mail, registered, postage prepaid, and addressed, in the case
of the Partnership, to the Secretary of Alliance Capital Management Corporation
at 1345 Avenue of the Americas, New York, New York 10105, or if the Partnership
should move its principal office, to such principal office, and, in the case of
the Employee, to his last permanent address as shown on the Partnership's
records, subject to the right of either party to designate some other address at
any time hereafter in a notice satisfying the requirements of this Section.
<PAGE>
-6-
14. Sections and Headings. All section references in this Agreement are to
sections hereof for convenience of reference only and are not to affect the
meaning of any provision of this Agreement.
ALLIANCE CAPITAL MANAGEMENT L.P.
By Alliance Capital Management
Corporation, General Partner
By /s/ John D. Carifa
----------------------------
John D. Carifa
President
/s/ David R. Brewer, Jr.
----------------------------
David R. Brewer, Jr.
AC Options
<PAGE>
Exhibit A To Unit Option Plan Agreement Dated December 10, 1998
between Alliance Capital Management L.P. and David R. Brewer, Jr.
1. The number of Units that the Employee is entitled to purchase
pursuant to the Option granted under this Agreement is 20,000.
2. The per Unit price to purchase Units pursuant to the Option granted
under this Agreement is $26.3125 per Unit.
3. Percentage of Units With Respect to
Which the Option First Becomes
Exercisable on the Date Indicated
<TABLE>
<CAPTION>
<S> <C>
1. December 10, 1999 20%
2. December 10, 2000 20%
3. December 10, 2001 20%
4. December 10, 2002 20%
5. December 10, 2003 20%
</TABLE>
<PAGE>
REVOLVING CREDIT
AGREEMENT
Dated as of July 20, 1998
Among
ALLIANCE CAPITAL MANAGEMENT L. P.,
as Borrower
NATIONSBANK, N.A.,
as Administrative Agent,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
THE BANK OF NEW YORK,
as Documentation Agent
NATIONSBANK, N.A.,
THE CHASE MANHATTAN BANK,
and
THE BANK OF NEW YORK
individually and as Co-Agents,
and
THE BANKS WHOSE NAMES APPEAR
ON THE SIGNATURE PAGES HEREOF
<PAGE>
TABLE OF CONTENTS
Page
1. DEFINITIONS AND RULES OF INTERPRETATION............................... 1
1.1 Definitions............................................... 1
1.2 Rules of Interpretation................................... 15
2. THE REVOLVING CREDIT FACILITY......................................... 16
2.1 Commitment to Lend........................................ 16
2.2 Facility Fee.............................................. 16
2.3 Utilization Fee........................................... 17
2.4 Reduction of Total Commitment............................. 17
2.5 The Notes................................................. 18
2.6 Interest on Revolving Credit Loans........................ 18
2.6.1 Interest Rates................................ 18
2.6.2 Interest Payment Dates........................ 18
2.7 Requests for Revolving Credit Loans....................... 18
2.8 Loans to Cover Reimbursement Obligations.................. 19
2.9 Conversion Options........................................ 19
2.9.1 Conversion to Eurodollar Rate Loan............ 19
2.9.2 Continuation of Type of Revolving Credit Loan. 19
2.9.3 Eurodollar Rate Loans......................... 20
2.9.4 Conversion Requests........................... 20
2.10 Funds for Revolving Credit Loans.......................... 20
2.10.1 Funding Procedures .......................... 20
2.10.2 Advances by Administrative Agent ............ 20
2.11 Limit on Number of Eurodollar Rate Loans.................. 21
2.12 Swing Loans............................................... 21
2.13 Competitive Bid Rate Loans................................ 23
3. REPAYMENT OF LOANS.................................................... 27
3.1 Maturity.................................................. 27
3.2 Mandatory Repayments of Revolving Credit Loans............ 28
3.2.1 Loans in Excess of Commitment................. 28
3.2.2 Change of Control............................. 28
3.3 Optional Repayments of Revolving Credit Loans............. 29
4. LETTERS OF CREDIT..................................................... 30
4.1 Letter of Credit Commitments.............................. 30
4.1.1 Commitment to Issue Letters of Credit ........ 30
4.1.2 Letter of Credit Applications................. 30
4.1.3 Terms of Letters of Credit.................... 30
4.1.4 Reimbursement Obligations of Banks............ 30
4.1.5 Participations of Banks....................... 31
4.2 Reimbursement Obligation of the Borrower.................. 31
4.3 Letter of Credit Payments................................. 31
4.4 Obligations Absolute...................................... 32
4.5 Reliance by Issuer........................................ 32
i
<PAGE>
Page
4.6 Letter of Credit Fee...................................... 33
4.7 Additional Cash Collateral Provisions..................... 33
5. CERTAIN GENERAL PROVISIONS............................................ 34
5.1 Application of Payments................................... 34
5.2 Funds for Payments........................................ 34
5.2.1 Payments to Co-Agents, Administrative Agent... 34
5.2.2 No Offset, Etc................................ 34
5.2.3 Fees Non-Refundable........................... 34
5.3 Computations.............................................. 35
5.4 Inability to Determine Eurodollar Rate.................... 35
5.5 Illegality................................................ 35
5.6 Additional Costs, Etc..................................... 35
5.7 Capital Adequacy.......................................... 37
5.8 Certificate............................................... 38
5.9 Indemnity................................................. 38
5.10 Interest After Default.................................... 38
6. REPRESENTATIONS AND WARRANTIES........................................ 38
6.1 Corporate Authority....................................... 39
6.1.1 Incorporation; Good Standing.................. 39
6.1.2 Authorization................................. 39
6.1.3 Enforceability................................ 39
6.1.4 Equity Securities............................. 39
6.2 Governmental Approvals.................................... 39
6.3 Liens; Leases............................................. 39
6.4 Financial Statements...................................... 40
6.5 No Material Changes, Etc.................................. 40
6.6 Permits................................................... 40
6.7 Litigation................................................ 40
6.8 Material Contracts........................................ 41
6.9 Compliance with Other Instruments. Laws, Etc.............. 41
6.10 Tax Status................................................ 41
6.11 No Event of Default....................................... 41
6.12 Holding Company and Investment Company Acts............... 41
6.13 Insurance................................................. 41
6.14 Certain Transactions...................................... 41
6.15 Employee Benefit Plans.................................... 42
6.16 Regulations U and X....................................... 42
6.17 Environmental Compliance.................................. 42
6.18 Subsidiaries, Etc......................................... 43
6.19 Funded Debt............................................... 44
6.20 General................................................... 44
7. AFFIRMATIVE COVENANTS OF THE BORROWER................................. 44
7.1 Punctual Payment.......................................... 44
7.2 Maintenance of Office..................................... 44
7.3 Records and Accounts...................................... 44
7.4 Financial Statements, Certificates, and Information....... 44
7.5 Notices................................................... 46
ii
<PAGE>
Page
7.5.1 Defaults...................................... 46
7.5.2 Environmental Events.......................... 46
7.5.3 Notice of Proceedings and Judgments........... 47
7.5.4 Notice of Change of Control................... 47
7.6 Existence; Business; Properties........................... 47
7.6.1 Legal Existence............................... 47
7.6.2 Conduct of Business........................... 48
7.6.3 Maintenance of Properties..................... 48
7.6.4 Status Under Securities Laws.................. 48
7.7 Insurance................................................. 48
7.8 Taxes..................................................... 48
7.9 Inspection of Properties and Books, Etc................... 48
7.9.1 General....................................... 48
7.9.2 Communication with Accountants................ 49
7.10 Compliance with Government Mandates, Contracts,
and Permits............................................. 49
7.11 Use of Proceeds........................................... 49
7.12 Restricted Subsidiaries................................... 49
7.13 Certain Changes in Accounting Principles.................. 49
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER............................ 50
8.1 Disposition of Assets..................................... 51
8.2 Mergers and Reorganizations............................... 51
8.3 Acquisitions.............................................. 53
8.4 Restrictions on Liens..................................... 54
8.5 Guaranties................................................ 55
8.6 Restrictions on Investments............................... 55
8.7 Restrictions on Funded Debt............................... 56
8.8 Distributions............................................. 56
8.9 Transactions with Affiliates.............................. 57
8.10 Fiscal Year............................................... 57
8.11 Compliance with Environmental Laws........................ 57
8.12 Employee Benefit Plans.................................... 57
8.13 Amendments to Certain Documents........................... 58
9. FINANCIAL COVENANTS OF THE BORROWER................................... 58
9.1 Ratio of Consolidated Adjusted Funded Debt to
Consolidated Adjusted Cash Flow......................... 58
9.2 Minimum Net Worth......................................... 59
9.3 Miscellaneous............................................. 59
10. CLOSING CONDITIONS.................................................... 59
10.1 Financial Statements and Material Changes................. 59
10.2 Loan Documents............................................ 59
10.3 Certified Copies of Charter Documents..................... 59
10.4 Partnership and Corporate Action.......................... 60
10.5 Consents.................................................. 60
10.6 Opinions of Counsel....................................... 60
10.7 Proceedings............................................... 60
10.8 Incumbency Certificate.................................... 60
10.9 Repayment of Existing Obligations......................... 60
iii
<PAGE>
Page
10.10 Fees...................................................... 60
10.11 Representations and Warranties True; No Defaults.......... 60
10.12 Year 2000 Letter.......................................... 61
11. CONDITIONS TO ALL BORROWINGS.......................................... 61
11.1 No Default................................................ 61
11.2 Representations True...................................... 61
11.3 Loan Request or Letter of Credit Application.............. 61
11.4 Payment of Fees........................................... 61
11.5 No Legal Impediment....................................... 61
12. EVENTS OF DEFAULT; ACCELERATION; ETC.................................. 62
12.1 Events of Default and Acceleration........................ 62
12.2 Termination of Commitments................................ 64
12.3 Remedies.................................................. 65
12.4 Application of Monies..................................... 65
13. SETOFF................................................................ 66
14. THE ADMINISTRATIVE AGENT.............................................. 66
14.1 Authorization............................................. 66
14.2 Employees and Agents...................................... 67
14.3 No Liability.............................................. 67
14.4 No Representations........................................ 67
14.5 Payments.................................................. 67
14.5.1. Payments to Administrative Agent............ 67
14.5.2. Distribution by Administrative Agent........ 67
14.5.3. Delinquent Banks............................ 68
14.6 Holders of Notes.......................................... 68
14.7 Indemnity................................................. 68
14.8 Administrative Agent and Co-Agents as Banks............... 68
14.9 Resignation............................................... 68
14.10 Notification of Defaults and Events of Default............ 69
14.11 Duties in the Case of Enforcement......................... 69
15. EXPENSES.............................................................. 69
16. INDEMNIFICATION....................................................... 70
17. SURVIVAL OF COVENANTS, ETC............................................ 71
18. ASSIGNMENT AND PARTICIPATION.......................................... 71
18.1 Conditions to Assignment by Banks......................... 71
18.2 Certain Representations and Warranties;
Limitations; Covenants.................................. 72
18.3 Register.................................................. 72
18.4 New Notes................................................. 72
18.5 Participations............................................ 73
18.6 Disclosure................................................ 73
18.7 Assignee or Participant Affiliated with the Borrower...... 73
18.8 Miscellaneous Assignment Provisions....................... 73
18.9 Assignment by Borrower.................................... 74
19. NOTICES, ETC.......................................................... 74
iv
<PAGE>
Page
20. GOVERNING LAW......................................................... 74
21. HEADINGS.............................................................. 75
22. COUNTERPARTS.......................................................... 75
23. ENTIRE AGREEMENT, ETC................................................. 75
24. WAIVER OF JURY TRIAL.................................................. 75
25. CONSENTS, AMENDMENTS, WAIVERS, ETC.................................... 76
26. SEVERABILITY.......................................................... 76
v
<PAGE>
Schedules
Schedule 1 - Banks and Commitments
Schedule 6.2 - Governmental Approvals
Schedule 6.18 - Subsidiaries
Schedule 6.19 - Funded Debt
Schedule 8.4 - Certain Permitted Liens
Schedule 8.6 - Certain Investments
Exhibits
Exhibit A - Form of Assumption 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 Swing Loan Advance Request
Exhibit H - Form of Confirmation of Swing Loan Advance Request
Exhibit I - Form of Competitive Bid Rate Quote Request
Exhibit J - Form of Invitation for Competitive Bid Rate Quotes
Exhibit K - Form of Competitive Bid Rate Quote
Exhibit L - Form of Competitive Bid Rate Note
Exhibit M - Form of Compliance Certificate
Exhibit N - Form of Assignment and Acceptance
Exhibit O - Form of Swing Loan Note
Exhibit P - Letter of Credit Application
Exhibit Q - Opinion Letter
vi
<PAGE>
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of July 20, 1998 (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, the "Banks"), and
NATIONSBANK, N.A., THE CHASE MANHATTAN BANK and THE BANK OF NEW YORK, as
co-agents for the Banks (as defined hereinbelow) (in such capacity, the
"Co-Agents"), NATIONSBANK, N.A. as administrative agent for the Banks (in such
capacity, the "Administrative Agent"), THE CHASE MANHATTAN BANK, as syndication
agent (in such capacity, the "Syndication Agent"), and THE BANK OF NEW YORK, as
documentation agent for the Banks (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 certain credit
facilities as described in this Credit Agreement to refinance certain
outstanding obligations, to support its issuance of commercial paper, for
working capital and for other purposes as provided below;
WHEREAS, the Banks are willing to provide such credit facilities to the
Borrower upon the terms and conditions set forth in this Credit Agreement; and
WHEREAS, the Co-Agents are willing to act as co-agents, and the
Administrative Agent is willing to act as administrative agent, for the Banks in
connection with such credit facilities 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. 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 2.13 hereof.
Acquisition. As defined in Section 8.3.
Administrative Agent. NationsBank N.A., acting as administrative agent for
the Banks.
Administrative Agent's Head Office. The Administrative Agent's head office
located at 101 North Tryon Street, Charlotte, North Carolina 28255, or at such
other location as the Administrative Agent may designate in a written notice to
the other parties hereto from time to time.
1
<PAGE>
Administrative Agent's Overnight Investment Rate. The annual rate of
interest in effect from time to time that is equal to the interest rate received
by the Administrative Agent from time to time with respect to funds invested in
overnight repurchase agreements.
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. The higher of (a) the annual rate of interest
announced from time to time by the Administrative Agent at the Administrative
Agent's Head Office as its "base rate" and (b) one-half of one percent (0.50%)
above the Federal Funds Effective Rate. Changes in the Alternative Base Rate
shall become effective automatically 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 18.1.
Assumption Agreement. An Assumption Agreement in the form of Exhibit A 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. NationsBank, N.A. 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 18.1.
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, Karen H. Bechtel, 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.
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 Charlotte, North
Carolina 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.
2
<PAGE>
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 6.17.
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 20, 1998, on which each of the
conditions set forth in Section 10 is satisfied or waived.
Co-Agents. NationsBank, The Chase Manhattan Bank and The Bank of New York,
acting as co-agents for the Banks.
Co-Agent's Head Office. In the case of NationsBank, 101 North Tryon Street,
Charlotte, North Carolina, in the case of The Chase Manhattan Bank, 270 Park
Avenue, 36th Floor, New York, New York 10017, and in the case of The Bank of New
York, One Wall Street, 17th Floor, New York, New York 10286, or at such other
location as any Co-Agent may designate in a written notice to the other parties
hereto from time to time.
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 and
to participate in the issuance, extension, and renewal of Letters of Credit for
the account of the Borrower, as the same may be reduced from time to time; or if
such commitment is terminated pursuant to the provisions hereof, zero.
Commitment Percentage. With respect to each Bank, the percentage set forth
on Schedule 1 hereto as such Bank's percentage of the aggregate Commitments of
all of the Banks.
3
<PAGE>
Competitive Bid Absolute Rate. As defined in Section 2.13.4 hereof.
Competitive Bid Rate Activation Date. As defined in Section 2.13.2 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 2.13.4 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
$425,000,000 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 L 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 2.13.2 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 9.1.
Consolidated Adjusted Funded Debt. As defined in Section 9.1.
Consolidated Net Income (or Loss). The consolidated net income (or loss) of
the Borrower, determined in accordance with GAAP, but excluding in any event:
(a) to the extent provided by Section 8.8, 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, 1997 through
the end of the period for which Consolidated Net Income (or Loss) is then
being determined, taken as one accounting period.
4
<PAGE>
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 2.9.
Credit Agreement. This Revolving Credit Agreement, including the Schedules
and Exhibits hereto.
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.
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 12.
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. The Bank of New York, acting as documentation agent.
5
<PAGE>
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 2.9.
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.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.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 6.17(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.
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 ss.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 lender 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
6
<PAGE>
"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 2.13 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.
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 Moody's Rating in effect as of any date of
determination as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Borrower's Eurodollar Rate
S&P Rating/Moody's Rating Applicable Margin
- --------------------------------------------------------------------------------
<S> <C>
A-1+/P-1 0.130%
- --------------------------------------------------------------------------------
A-1/P-1 0.145%
- --------------------------------------------------------------------------------
A-1/P-2 or A-2/P-1 0.175%
- --------------------------------------------------------------------------------
Equal to or less than A-2 or P-2, or A-2/P-2 0.300%
- --------------------------------------------------------------------------------
</TABLE>
Notwithstanding the foregoing, if the Borrower loses both its Moody's Rating and
its S&P Rating at any time, the Eurodollar Rate Applicable Margin shall be
0.375%, in any such case subject, as applicable, to the provisions of Section
5.10 hereof. If, subsequent to losing such ratings, the Borrower is able to
again obtain such ratings, the above table shall, from and after the date of
such occurrence (until such time, if any, that 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 12.
7
<PAGE>
Existing Credit Agreement. See Section 6.16.
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 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.
Federal Funds 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 Moody's Rating in effect as of any date of
determination as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Borrower's Federal Funds
S&P Rating/Moody's Rating Rate Applicable Margin
- --------------------------------------------------------------------------------
<S> <C>
A-1+/P-1 0.180%
- --------------------------------------------------------------------------------
A-1/P-1 0.195%
- --------------------------------------------------------------------------------
A-1/P-2 or A-2/P-1 0.225%
- --------------------------------------------------------------------------------
Equal to or less than A-2 or P-2, or A-2/P-2 0.350%
- --------------------------------------------------------------------------------
</TABLE>
Notwithstanding the foregoing, if the Borrower loses both its Moody's Rating and
its S&P Rating at any time, the Federal Funds Rate Applicable Margin shall be
0.425%, in any such case, subject, as applicable, to the provisions of Section
5.10 hereof. If, subsequent to losing such ratings, the Borrower is able to
again obtain such ratings, the above table shall, from and after the date of
such occurrence (until such time, if any, that the Borrower again loses such
ratings), govern the Federal Funds Rate Applicable Margin.
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 8.1(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
8
<PAGE>
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 12.1(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 7.13, (a) when used in Section 9, 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, 1997, and (ii) to 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, 1997, 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, any Co-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 6.17(b).
9
<PAGE>
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 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; (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 or Competitive Bid 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; and (c)
as to any Swing Loan, the last day of the Interest Period specified pursuant to
the Swing Loan requested by the Borrower.
Interest Period. (a)(1) 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 (2) with respect to any
Competitive Bid Rate Loan, the period commencing on the Drawdown Date of such
Loan and ending on the last day of, as selected by the Borrower in a Competitive
Bid Rate Quote Request, from and including seven (7) days to and including one
hundred eighty (180) days; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(x) 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;
(y) 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
(z) any Interest Period commencing prior to the Maturity Date that
would otherwise extend beyond the Maturity Date shall end on the Maturity
Date.
10
<PAGE>
(b) With respect to each Swing Loan, the period specified by the Borrower
from one (1) to seven (7) days pursuant to the Swing Loan Request.
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 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.
Letter of Credit. As defined in Section 4.1.1.
Letter of Credit Application. As defined in Section 4.1.1.
Letter of Credit Commitment. As defined in Section 4.1.1.
Letter of Credit Fee. As defined in Section 4.6.
Letter of Credit Participation. As defined in Section 4.1.4.
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, the Letter of Credit
Applications, the Letters of Credit, 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, the Competitive Bid Rate Loans and the
Swing Loans.
Majority Banks. The Banks whose aggregate Commitments constitute at least
sixty-six and two thirds percent (66-2/3%) of the Total Commitment.
Mandatory Borrowing. As defined in Section 2.12.
11
<PAGE>
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 12.1(h),
Section 12.1(i), or Section 12.1(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 20, 2003.
Maximum Drawing Amount. The maximum aggregate amount from time to time that
the beneficiaries may draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Moody's Rating. With respect to any Entity which is the issuer or obligor
with respect to commercial paper, the rating assigned to such entity by Moody's
Investors Service, Inc. from time to time in effect.
Multiemployer Plan. Any multiemployer plan within the meaning of ss.3(37)
of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate.
NationsBank. NationsBank, N.A., a national banking association.
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 any
Swing Loan Notes and Competitive Bid Rate Notes, substantially in the form of
Exhibit B, Exhibit L and Exhibit O, 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, any Co-Agent
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 Reimbursement Obligations incurred or any of the Notes, Letter of Credit
Applications, Letters of Credit, or other instruments at any time evidencing any
thereof.
Other Obligor. As defined in the Assumption Agreements.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
12
<PAGE>
PBGC. The Pension Benefit Guaranty Corporation created by ss.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 8.3.
Permitted Liens. Liens permitted by Section 8.4.
Person. Any individual, Entity, or Government Authority.
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.
Readily Marketable Securities. Equity Securities or Indebtedness for which
an established public or private trading market exists, such that they may
reasonably be expected to be liquidated within five (5) Business Days.
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.
Reimbursement Obligation. The Borrower's obligation to reimburse the
Co-Agents and the Banks on account of any drawing under any Letter of Credit as
provided in ss.4.2.
Reorganization and Reorganize. As defined in Section 8.2.
Restricted Subsidiary. Each (a) Subsidiary of the Borrower designated as a
"Restricted Subsidiary" on Schedule 6.18 (and by such designation the Borrower
represents and warrants to the Administrative Agent, the Co-Agents 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, the
Co-Agents 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
13
<PAGE>
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 Swing Loans or
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.
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 Services 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.
Swing Loan Committed Amount. As defined in Section 2.12.
Swing Loan. Any Loans made to the Borrower by either of the Co-Agents from
time to time, in such Co-Agent's sole discretion (as exercised in accordance
with Section 2.12(e) hereof) and for such Co-Agent's account, which Loans shall
be made in accordance with Section 2.12.
Swing Loan Notes. Those certain Swing Loan Notes of even date herewith in
the principal amount, with respect to each Co-Agent, of up to the amount of each
Co-Agent's Commitment in its individual capacity as a Bank hereunder, issued by
the Borrower to the Co-Agents, substantially in the form of Exhibit O, and any
amendments, replacements, extensions or renewals thereof.
Swing Loan Request. As defined in Section 2.12.
Syndication Agent. The Chase Manhattan Bank, 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 $425,000,000.
Total Swing Loan Commitment. As defined in Section 2.12.
14
<PAGE>
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.
Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, or any successor version thereof adopted by any of
the Co-Agents in the ordinary course of its business as a letter of credit
issuer, upon notice to the Borrower, and in effect at the time of issuance of
such Letter of Credit.
Units. Units representing assignments of beneficial ownership of limited
partnership interests in the Borrower.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which the
Borrower does not reimburse the Co-Agents and the Banks on the date specified
in, and in accordance with, Section 4.2 and that is not covered by a Loan as
provided in Section 2.8.
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.
(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.
15
<PAGE>
(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 "ss.", 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. THE REVOLVING CREDIT FACILITY.
2.1 Commitment to Lend. (a) Subject to the terms and conditions set forth
in Section 11 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 minus (i) in the case of each of the Co-Agents acting in their
capacity as a Bank, the principal amount of any outstanding Swing Loans made by
such Co-Agent, and (ii) such Bank's Commitment Percentage of the sum of the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations, provided that
the sum of (A) the outstanding amount of the Revolving Credit Loans (after
giving effect to all amounts requested) plus (B) the principal amount of
outstanding Swing Loans plus (C) the Maximum Drawing Amount plus (D) all Unpaid
Reimbursement Obligations plus (E) 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 11 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.
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 2.13.1 hereof, for purposes of this
Section 2.2, the Total Commitment shall not be reduced by the amount of
Competitive
16
<PAGE>
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 Moody's Rating in effect as of any date of determination as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Borrower's
S&P Rating/Moody's Rating Facility Fee
- --------------------------------------------------------------------------------
<S> <C>
A-1+/P-1 0.070%
- --------------------------------------------------------------------------------
A-1/P-1 0.075%
- --------------------------------------------------------------------------------
A-1/P-2 or A-2/P-1 0.100%
- --------------------------------------------------------------------------------
Equal to or less than A-2 or P-2, or A-2/P-2 0.150%
- --------------------------------------------------------------------------------
</TABLE>
Notwithstanding the foregoing, if the Borrower loses both its Moody's Rating,
and its S&P Rating at any time, the facility fee shall be 0.200%. If, subsequent
to losing such ratings, the Borrower is able to again obtain such ratings, the
above table shall, from and after the date of such occurrence (until such time,
if any, that the Borrower again loses such ratings), govern the facility fee.
2.3 Utilization Fee. For any calendar quarter in which the sum of (i) the
average aggregate daily outstanding balance of the Loans plus (ii) the average
aggregate Maximum Drawing Amount of all Letters of Credit outstanding plus (iii)
the average aggregate daily outstanding balance of Unpaid Reimbursement
Obligations (to the extent not included under (i) or (ii))exceeds 50% 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 with their respective Commitment Percentages, a utilization fee
calculated at a rate per annum equal to 0.050% of the sum of (i) the average
aggregate outstanding amount of the Loans during such calendar quarter plus (ii)
the average aggregate Maximum Drawing Amount of all Letters of Credit
outstanding during such quarter plus (iii) the average aggregate daily
outstanding balance of Unpaid Reimbursement Obligations during such quarter (to
the extent not included under (i) or (ii)). 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
17
<PAGE>
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.
2.6 Interest on Revolving Credit Loans.
2.6.1 Interest Rates. Except as otherwise provided in Section 5.10,
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. (Charlotte, North Carolina 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.
18
<PAGE>
2.8 Loans to Cover Reimbursement Obligations. Notwithstanding the notice
and minimum amount requirements set forth in Section 2.7, the Banks shall,
according to their Commitment Percentages and subject to the satisfaction of the
conditions set forth herein, make Revolving Credit Loans to the Borrower as
provided in Section 2.10.1 on the date that any draft presented under any Letter
of Credit is honored by any Co-Agent, or any date on which any Co-Agent
otherwise makes a payment with respect thereto, in an amount sufficient to pay
in full the obligations of the Borrower under Section 4.2 in respect of the
honor of such draft or the making of such payment. The Borrower hereby requests
and authorizes the Banks to make from time to time such Revolving Credit Loans.
The Borrower acknowledges and agrees that the making of such Revolving Credit
Loans shall, in each case, be subject in all respects to the provisions of this
Credit Agreement as if they were Revolving Credit Loans covered by a Loan
Request, including the limitations set forth in Section 2.1 and the requirement
that the applicable provisions of Sections 10 and 11 be satisfied. Each Co-Agent
may (but shall not be required to) assume that each Bank will make available to
it on a timely basis funds for any Loan under this Section 2.8 and each Bank
shall reimburse such Co-Agent for any such amounts so advanced on its behalf,
all on the terms and conditions of Section 2.10.2. Absent manifest error on the
part of such Co-Agent or the Banks, all actions taken by such Co-Agent or the
Banks pursuant to the provisions of this Section 2.8 shall be conclusive and
binding on the Borrower. Loans made pursuant to this Section 2.8 shall be
Alternative Base Rate Loans until converted in accordance with the provisions of
this Credit Agreement.
2.9 Conversion Options.
2.9.1 Conversion to Eurodollar Rate Loan. The Borrower may elect from time
to time, subject to Section 2.11, 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. 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.
2.9.2 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 2.9.1.
(b) Any Eurodollar Rate Loan may, subject to Section 2.11, 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
19
<PAGE>
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 2.9.2, 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 2.9.2 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.
2.9.3 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.
2.9.4 Conversion Requests. All notices of the conversion or continuation of
a Loan provided for in this Section 2.9 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.
2.10 Funds for Revolving Credit Loans.
2.10.1 Funding Procedures. Not later than 1:00 p.m. (Charlotte, North
Carolina time) on the proposed Drawdown Date of any Revolving Credit Loans or
the Drawdown Date of any Revolving Credit Loans under Section 2.8, 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 11 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.
2.10.2 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
20
<PAGE>
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 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.
2.11 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.
2.12 Swing Loans.
(a) Subject to the terms and conditions of Section 11 hereof, each of the
Co-Agents, in its individual capacity, agrees to make certain Loans to the
Borrower (each a "Swing Loan" and, collectively, the "Swing Loans") from time to
time from the Closing Date until the Maturity Date in an amount not to exceed
the amount of such Co-Agent's Commitment in its individual capacity as a Bank
hereunder (the "Swing Loan Committed Amount") for the purposes hereinafter set
forth; provided, however, (i) the aggregate amount of Swing Loans outstanding at
any time shall not exceed $150,000,000 (the "Total Swing Loan Commitment") and
(ii) the sum of Revolving Credit Loans outstanding plus Swing Loans outstanding,
plus Competitive Bid Rate Loans outstanding, plus the sum of the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations at any time shall not exceed the
Total Commitment. Swing Loans hereunder may be repaid and reborrowed in
accordance with the provisions hereof.
(b) Swing Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires a Swing Loan
advance hereunder it shall give written notice in the form of Exhibit G
hereto (or telephone notice confirmed in a writing in the form of Exhibit H
hereto) of each Swing Loan requested hereunder (a "Swing Loan Request") to
the Co-Agent from which the Borrower wishes to obtain such Swing Loan no
later than 1:00 p.m. (Charlotte, North Carolina time) on the Drawdown Date
of the requested Swing Loan advance. Each such notice shall be irrevocable
and shall specify (A) that a Swing Loan advance is requested, (B) the date
of the requested Swing Loan advance (which shall be a Business Day), and
(C) the aggregate principal amount of the Swing Loan advance requested. The
Co-Agent receiving such Swing Loan Request shall initiate the transfer of
funds representing the Swing Loan advance to the Borrower by 2:00 p.m.
(Charlotte, North Carolina time) on the Business Day specified by the
Borrower in the applicable Swing Loan Request. If the Co-Agent making such
Swing Loan is not the Administrative Agent, such Co-Agent shall also
promptly notify the Administrative Agent of the amount of such Swing Loan
and the date such Swing Loan was funded.
21
<PAGE>
(ii) Minimum Amounts. Each Swing Loan advance shall be in a minimum
principal amount of $1,000,000 and integral multiples of $100,000, in
excess thereof.
(iii) Repayment of Swing Loans. Each Swing Loan advance shall be due
and payable on the earliest of (A) seven (7) days from the date of advance
thereof, (B) the date of the next Revolving Credit Loan, or (C) the
Maturity Date or any earlier date on which the Total Commitment is
terminated. If, and to the extent, any Swing Loan advances shall be
outstanding on the date of any Revolving Credit Loan, such Swing Loans
shall first be repaid from the proceeds of such Revolving Credit Loan prior
to distribution to the Borrower. If, and to the extent, Revolving Credit
Loans are not requested prior to the Maturity Date or any earlier date on
which the Total Commitment is terminated or the end of any such seven (7)
day period from the date of any such Swing Loan advance, the Borrower shall
be deemed to have requested a Revolving Credit Loan comprised solely of
Alternative Base Rate Loans in the amount of such Swing Loan advance then
outstanding, the proceeds of which shall be used to repay the relevant
Co-Agent for such Swing Loan. In addition, the Co-Agent that made such
Swing Loan may, at any time, in its sole discretion by written notice to
the Borrower, require repayment of its Swing Loans by way of a Revolving
Credit Loan, in which case the Borrower shall be deemed to have requested a
Revolving Credit Loan comprised solely of Alternative Base Rate Loans in
the amount of such Swing Loans; provided, however, that any such demand
shall be deemed to have been given one Business Day prior to the Maturity
Date and upon the occurrence of any Event of Default described in Section
12.1(h) or Section 12.1(i) and also upon acceleration of the Obligations
hereunder, whether on account of an Event of Default described in Section
12.1(h) or Section 12.1(i) or any other Event of Default, and upon the
exercise of remedies in accordance with the provisions of Section 12 hereof
following an Event of Default (each such Revolving Credit Loan made on
account of any such deemed request therefor as provided herein being
hereinafter referred to as a "Mandatory Borrowing"). Each Bank hereby
irrevocably agrees to make such Revolving Credit Loans promptly upon any
such request or deemed request on account of each Mandatory Borrowing in
the amount and in the manner specified in the preceding sentence and on the
same such date notwithstanding (I) the amount of Mandatory Borrowing may
not comply with the minimum amount of advances of Revolving Credit Loans
otherwise required hereunder, (II) whether any conditions specified in
Section 11 are then satisfied, (III) whether a Default or an Event of
Default then exists, (IV) failure of any such request or deemed request for
Revolving Credit Loan to be made by the time otherwise required in Section
2.7, (V) the date of the Mandatory Borrowing, or (VI) any reduction in the
Total Commitment or termination of the Commitments relating thereto
immediately prior to such Mandatory Borrowing or contemporaneously
therewith; provided, however, that no Bank shall be required to make such
Revolving Credit Loans if, at the time that one of the Co-Agents agreed to
fund any Swing Loan Request, the Co-Agent that made such Swing Loan had
actual knowledge of the existence of a Default. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower or any other obligor hereunder), then each Bank hereby agrees that
it shall forthwith purchase (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the
Co-Agent that made such Swing Loan such participations in the outstanding
Swing Loans as shall be necessary to cause each such Bank to share in such
Swing Loans ratably based upon its respective Commitment (determined before
giving effect to any termination of the Commitments pursuant to Section
12.2), provided that (A) all interest payable on the Swing Loans shall be
for the account of the Co-Agent that made such Swing Loan until the date as
of
22
<PAGE>
which the respective participation is purchased, and (B) at the time any
purchase of participations pursuant to this sentence is actually made, the
purchasing Bank shall be required to pay to the Co-Agent that made such
Swing Loan interest on the principal amount of participation purchased for
each day from and including the day upon which the Mandatory Borrowing
would otherwise have occurred to but excluding the date of payment for such
participation, at the rate equal to, if paid within two (2) Business Days
of the date of the Mandatory Borrowing, the Federal Funds Effective Rate,
and thereafter at a rate equal to the Alternative Base Rate.
(iv) Prepayment of Swing Loans. The Borrower shall also have the
right, at its election, to repay the outstanding amount of a Swing Loan, as
a whole or in part, at any time without penalty or premium. The Borrower
shall give the applicable Co-Agent and the Administrative Agent, no later
than 10:00 a.m., Charlotte, North Carolina time, at least one (1) Business
Day's prior written notice, of any proposed repayment pursuant to this
Section 2.12(b)(iv), specifying the proposed date of repayment and
principal amount to be repaid.
(c) Interest on Swing Loans. While outstanding, each Swing Loan shall bear
interest at a per annum rate equal to the Federal Funds Effective Rate for such
day plus the Federal Funds Rate Applicable Margin; provided, however, that from
and after any failure to make any payment of principal or interest in respect of
any of the Loans hereunder when due (after giving effect to any applicable grace
period), whether at scheduled or accelerated maturity or on account of any
mandatory prepayment, the principal of and, to the extent permitted by law,
interest on, Swing Loans shall bear interest, payable on demand, at a per annum
rate two percent (2%) in excess of the Federal Funds Effective Rate for such day
plus the applicable Federal Funds Rate Applicable Margin. Interest on Swing
Loans shall be payable in arrears on each Interest Payment Date.
(d) Swing Note. The Swing Loans shall be evidenced by duly executed
promissory notes of the Borrower to each of the Co-Agents dated as of the
Closing Date in the original amount of each Co-Agent's Swing Loan Committed
Amount and substantially in the form of Exhibit O, attached hereto (as the same
may be amended, modified, supplemented, extended, renewed or replaced from time
to time).
(e) Termination of Swing Loans. Any of the Co-Agents may, in its sole and
absolute discretion, elect not to make Swing Loans hereunder, provided, that any
notice required pursuant to the immediately following sentence shall have been
given and the requisite notice period specified therein shall have lapsed.
Unless a Default or Event of Default then exists, the Co-Agent making such
election shall give the Borrower at least seven (7) days prior written notice
before exercising such Co-Agent's discretion herein not to make Swing Loans.
2.13 Competitive Bid Rate Loans.
2.13.1 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
23
<PAGE>
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.
2.13.2 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 I (a
"Competitive Bid Rate Quote Request") hereto prior to 2:00 p.m. (Charlotte,
North Carolina 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;
(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.
2.13.3 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. (Charlotte, North Carolina
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 J 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.
2.13.4 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
2.13 and must be submitted to the Administrative Agent by telecopy not later
than (x) 1:00 p.m. (Charlotte, North Carolina 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. (Charlotte, North Carolina 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
24
<PAGE>
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 (Charlotte, North Carolina 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. (Charlotte, North
Carolina time) on the proposed date of the Competitive Bid Rate Loan, in the
case of an Absolute Rate Auction. Subject to Sections 5, 11 and 12 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.
(b) Each Competitive Bid Rate Quote shall be in substantially the form of
Exhibit K 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 K attached hereto
or does not specify all of the information required by Section 2.13.4(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 2.13.4(a).
2.13.5 Notice to the Borrower. The Administrative Agent shall promptly
notify the Borrower by telephone not later than (x) 1:30 p.m. (Charlotte, North
Carolina 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. (Charlotte, North Carolina 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
25
<PAGE>
any Competitive Bid Rate Quote submitted by a Bank, specifying whether it meets
the requirements of Section 2.13.4 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 2.13.4
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 2.13.6 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.
2.13.6 Acceptance and Notice by the Borrower. Not later than (i) 11:00 a.m.
(Charlotte, North Carolina 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. (Charlotte, North Carolina 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 2.13.5. 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 2.13.4(c) or that otherwise fails to
comply with the requirements of this Agreement.
2.13.7 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 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 2.13.8 hereof, and the Competitive Bid Rate Margin or
Competitive Bid
26
<PAGE>
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.
2.13.8 Funding of Competitive Bid Rate Loans. Not later than 1:00 p.m.
(Charlotte, North Carolina 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 2.13.7 hereof), in immediately available funds, to the
Administrative Agent. Unless the Administrative Agent determines that any
applicable condition specified in Section 11 or this Section 2.13 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. (Charlotte, North Carolina
time) on the date of such Competitive Bid Rate Loan.
2.13.9 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 5.9 hereof. The Borrower shall give
the Administrative Agent, no later than 10:00 a.m., Charlotte, North Carolina
time, at least one (1) Business Day's prior written notice, of any proposed
repayment pursuant to this Section 2.13.9 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 2.13.9 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.
2.13.10 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.
2.13.11 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 L hereto.
3. 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.
27
<PAGE>
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, the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the Total Commitment, then the Borrower shall
immediately pay the amount of such excess to the Administrative Agent for
application first, to any Unpaid Reimbursement Obligations; second, to the Swing
Loans; third, to the Competitive Bid Rate Loans; fourth, to the Revolving Credit
Loans; and fifth, to provide to the Administrative Agent cash collateral for
Reimbursement Obligations as contemplated by ss.4.2(b) and (c). Each payment of
any Unpaid Reimbursement Obligations or prepayment of Loans shall be allocated
among the Banks (and, in the case of Swing Loans, the Co-Agents and in the case
of Banks making Competitive Bid Rate Loans, among such Banks), in proportion, as
nearly as practicable, to each Reimbursement Obligation or (as the case may be)
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 7.5.4;
(b) the Commitments (but not the right of the Borrower to convert and
continue Types of Revolving Credit Loans under Section 2.9) 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 7.5.4) 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 neither the Banks nor the Co-Agents
shall have any obligations 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, Unpaid Reimbursement Obligations, all accrued and
unpaid interest thereon, and any other amounts owing under the Loan
Documents, as well as payment of cash collateral for such Bank's Letter of
Credit Participation, 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 is also a Co-Agent, all Swing Loans or in the case of a
Bank that has made Competitive Bid Rate Loans, all Competitive Bid Rate
Loans ), all accrued and unpaid interest thereon, any Unpaid
28
<PAGE>
Reimbursement Obligations 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 5.9 in respect of the prepayment of such Eurodollar
Rate Loan or Competitive Bid Eurodollar Loan) and the Borrower shall on the
last day of the Suspension Period pay to the Administrative Agent an amount
equal to such Bank's pro rata share of the then Maximum Drawing Amount on
all Letters of Credit, which amount shall be held by the Administrative
Agent as cash collateral for the benefit of such Bank for its share of all
Reimbursement Obligations. Notwithstanding the immediately preceding
sentence, so long as no Event of Default has occurred and is continuing, if
at any time (whether before or after the date at which the Borrower
provides cash collateral for any Letters of Credit) any Bank, or any other
financial institution reasonably satisfactory to the Administrative Agent
which meets the requirements of an Eligible Assignee, agrees to purchase
the Letter of Credit Participation of one or more Banks that have made
demand pursuant to clause (c) or clause (d) above, and such Person has
executed the documentation necessary to consummate such purchase, (x) the
Borrower shall be relieved of the obligation to provide cash collateral
with respect to Letters of Credit and (y) such selling Bank shall be
relieved of the obligation to fund an advance with respect to Letters of
Credit, but only to the extent in each case that such purchasing Bank or
other financial institution has purchased such Letter of Credit
Participation. If the Borrower has provided such cash collateral prior to
such purchase, the Administrative Agent shall refund to the Borrower a
portion of such cash collateral equal to the amount of Letter of Credit
Participation so purchased.
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 or
participate in the risk of Letters of Credit issued, extended, or renewed after
the date of such demand. 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,
the Co-Agents and the Administrative Agent, 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 5.9. The Borrower shall give the
Administrative Agent, no later than 10:00 a.m., Charlotte, North Carolina 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
29
<PAGE>
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 11.
4. LETTERS OF CREDIT.
4.1 Letter of Credit Commitments.
4.1.1 Commitment to Issue Letters of Credit. Subject to the terms and
conditions hereof and the execution and delivery by the Borrower of a letter of
credit application on the Co-Agents' customary form attached hereto as Exhibit
P, or such other form as may be reasonably acceptable to the Borrower and the
Co-Agent issuing such Letter of Credit (a "Letter of Credit Application"), the
Co-Agent receiving such Letter of Credit Application on behalf of the Banks and
in reliance upon the agreement of the Banks set forth in Section 4.1.4 and upon
the representations and warranties of the Borrower contained herein, agrees, in
its individual capacity, to issue, extend, and renew for the account of the
Borrower one or more standby letters of credit (individually, a "Letter of
Credit"), in such form as may be requested from time to time by the Borrower and
agreed to by either of the Co-Agents; provided, however, that, after giving
effect to such request, (i) the Maximum Drawing Amount on all Letters of Credit
shall not exceed $130,000,000 (the "Letter of Credit Commitment"), and (ii) the
sum of (A) the Maximum Drawing Amount on all Letters of Credit, (B) all Unpaid
Reimbursement Obligations, and (C) the amount of all Loans outstanding shall not
exceed the Total Commitment.
4.1.2 Letter of Credit Applications. Each Letter of Credit Application
shall be completed to the reasonable satisfaction of the Borrower and the
Co-Agent to which it is delivered. In the event that any provision of any Letter
of Credit Application shall be inconsistent with any provision of this Credit
Agreement, then the provisions of this Credit Agreement shall, to the extent of
any such inconsistency, govern.
4.1.3 Terms of Letters of Credit. Each Letter of Credit issued, extended,
or renewed hereunder shall, among other things, (a) provide for the payment of
sight drafts for honor thereunder when presented in accordance with the terms
thereof and when accompanied by the documents described therein, and (b) have an
expiry date no later than the date which is fourteen (14) days prior to the
Maturity Date. Each Letter of Credit so issued, extended, or renewed shall be
subject to the Uniform Customs.
4.1.4 Reimbursement Obligations of Banks. Each Bank severally agrees that
it shall be absolutely liable, without regard to the occurrence of any Default
or Event of Default or any other condition precedent whatsoever, to the extent
of such Bank's Commitment Percentage, to reimburse the Co-Agent issuing any
Letter of Credit on demand for the amount of each draft paid by such Co-Agent
under each such Letter of Credit to the extent that such amount is not
reimbursed by the Borrower pursuant to Section 4.2 (such agreement for a Bank
being called herein the "Letter of Credit Participation" of such Bank);
provided, however, that no Bank shall be required to reimburse the Co-Agent
issuing such Letter of Credit, if at the time that such Co-Agent issued such
Letter of Credit, such Co-Agent had actual knowledge of the existence of a
Default.
30
<PAGE>
4.1.5 Participations of Banks. Each such payment made by a Bank shall be
treated as the purchase by such Bank, to the extent of such Bank's Commitment
Percentage, of a participating interest in the Borrower's Reimbursement
Obligation under Section 4.2 in an amount equal to such payment. Each Bank shall
share in accordance with its participating interest in any interest which
accrues pursuant to Section 4.2.
4.2 Reimbursement Obligation of the Borrower. In order to induce the
Co-Agents to issue, extend, and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse or pay to the
Co-Agent issuing such Letter of Credit, for the account of such Co-Agent or (as
the case may be) the Banks, with respect to each Letter of Credit issued,
extended, or renewed by such Co-Agent hereunder,
(a) except as otherwise expressly provided in Section 4.2(b) and (c), on
each date that any draft presented under such Letter of Credit is honored by
either Co-Agent, or either Co-Agent otherwise makes a payment under or pursuant
to such Letter of Credit, the amount paid by such Co-Agent under or with
respect to such Letter of Credit;
(b) upon the reduction (but not termination) of the Total Commitment or the
Letter of Credit Commitment to an amount less than the Maximum Drawing Amount,
an amount equal to such difference, which amount shall be held by the
Administrative Agent for the benefit of the Banks and the Co-Agents as cash
collateral for all Reimbursement Obligations, subject to the provisions of
Section 3.2.2; and
(c) upon the termination of the Total Commitment or the Letter of Credit
Commitment or the acceleration of the Reimbursement Obligations with respect to
all Letters of Credit in accordance with Section 12, an amount equal to one
hundred percent (100%) of the then Maximum Drawing Amount on all such Letters of
Credit plus projected Letter of Credit Fees, based upon the Borrower's then
effective commercial paper rating, which amount shall be held by the
Administrative Agent for the benefit of the Banks and the Co-Agents as cash
collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Head Office or to the relevant Co-Agent at such
Co-Agent's Head Office, as the case may be, in immediately available funds or
from the direct application of the proceeds of a Revolving Credit Loan made
pursuant to Section 2.8. To the extent not paid pursuant to Section 2.8,
interest on any and all amounts remaining unpaid by the Borrower under this
Section 4.2 at any time from the date such amounts become due and payable
(whether as stated in this Section 4.2, by acceleration, or otherwise) until
payment in full (whether before or after judgment) shall be payable to the
relevant Co-Agent on demand at the rate specified in Section 5.10 for overdue
principal of the Alternate Base Rate Loans.
4.3 Letter of Credit Payments. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Co-Agent
receiving such draft or demand shall notify the Borrower and the Banks of the
date and amount of the draft presented or demand for payment and of the date and
time when it expects to pay such draft or honor such demand for payment. If the
Borrower fails to reimburse the relevant Co-Agent as provided in Section 4.2 on
or before the date that such draft is paid or other payment is made by such
Co-Agent (and the draft or other payment is not covered by a Revolving Credit
Loan as provided in Section 2.8), such Co-Agent shall promptly thereafter, but
not later than 1:00 p.m. (Dallas, Texas time) on the date such draft is paid or
other payment is made by such Co-Agent, notify the Banks of the amount of any
such Unpaid Reimbursement Obligation. As soon as
31
<PAGE>
possible following such notice, but in no event later than 3:00 p.m. (Dallas,
Texas time) on the date of such notice, each Bank shall make available to such
Co-Agent, at its Head Office, in immediately available funds, such Bank's
Commitment Percentage of such Unpaid Reimbursement Obligation, together with an
amount equal to the product of (a) the average, computed for the period referred
to in clause (c) below, of the weighted average interest rate paid by such
Co-Agent for federal funds acquired by such Co-Agent during each day included in
such period, times (b) the amount equal to such Bank's Commitment Percentage of
such Unpaid Reimbursement Obligation, times (c) a fraction, the numerator of
which is the number of days that elapse from and including the date such
Co-Agent paid the draft presented for honor or otherwise made payment to the
date on which such Bank's Commitment Percentage of such Unpaid Reimbursement
Obligation shall become immediately available to such Co-Agent, and the
denominator of which is 360. The responsibility of such Co-Agent to the Borrower
and the Banks shall be only to determine that the documents (including each
draft) delivered under each Letter of Credit in connection with such presentment
shall be in conformity in all material respects with such Letter of Credit.
4.4 Obligations Absolute. The Borrower's obligations under this Section 4
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim, or defense to
payment which the Borrower may have or have had against the Administrative
Agent, any Co-Agent, any Bank, or any beneficiary of a Letter of Credit. The
Borrower further agrees with the Administrative Agent, each Co-Agent and the
Banks that the Administrative Agent, each Co-Agent and the Banks shall not be
responsible for, and the Borrower's Reimbursement Obligations under Section 4.2
shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent, or forged, or any
dispute between or among the Borrower, the beneficiary of any Letter of Credit,
or any financing institution or other party to which any Letter of Credit may be
transferred or any claims or defenses whatsoever of the Borrower against the
beneficiary of any Letter of Credit or any such transferee. The Administrative
Agent, each Co-Agent and the Banks shall not be liable for any error, omission,
interruption, or delay in transmission, dispatch, or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit. The
Borrower agrees that any action taken or omitted by the Administrative Agent,
any Co-Agent or any Bank under or in connection with each Letter of Credit and
the related drafts and documents, if done in good faith, shall be binding upon
the Borrower and shall not result in any liability on the part of the
Administrative Agent, any Co-Agent or any Bank to the Borrower.
4.5 Reliance by Issuer. To the extent not inconsistent with Section 4.4,
each Co-Agent shall be entitled to rely, and shall be fully protected in relying
upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex, or
teletype message, statement, order, or other document believed by it to be
genuine and correct and to have been signed, sent, or made by the proper Person
and upon advice and statements of legal counsel, independent accountants, and
other experts selected by such Co-Agent. Each of the Banks hereby indemnifies
and holds each of the Co-Agents harmless from and against any and all claims,
liability, damages, costs and expenses incurred by such Co-Agent in connection
with any and all actions taken with respect to any Letter of Credit or any draft
presented pursuant to any such Letter of Credit, so long as such action is taken
in good faith. Each Co-Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Credit Agreement in accordance with a
request of the Majority Banks, and such request and any action taken or failure
to act pursuant thereto shall be binding upon the Banks and all future holders
of the Notes or of a Letter of Credit Participation.
32
<PAGE>
4.6 Letter of Credit Fee. The Borrower shall, on the date of issuance of
any Letter of Credit and each anniversary thereof, pay in advance a fee (in each
case, collectively with the fee described below in this Section 4.6, a "Letter
of Credit Fee") to the Co-Agent issuing such Letter of Credit, for the account
of the Banks (including NationsBank, the Chase Manhattan Bank and The Bank of
New York, in their capacity as a Bank) on a pro rata basis, in respect of such
Letter of Credit equal to a percentage of the Maximum Drawing Amount of such
Letter of Credit calculated based upon the Borrower's S&P Rating and Moody's
Rating in effect as of any date of determination as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Borrower's
S&P Rating/Moody's Rating Letter of Credit Fee
- --------------------------------------------------------------------------------
<S> <C>
A-1+/P-1 0.130%
- --------------------------------------------------------------------------------
A-1/P-1 0.150%
- --------------------------------------------------------------------------------
A-1/P-2 or A-2/P-1 0.175%
- --------------------------------------------------------------------------------
Equal to or less than A-2 or P-2, or A-2/P-2 0.300%
- --------------------------------------------------------------------------------
</TABLE>
Notwithstanding the foregoing, if the Borrower loses both its Moody's Rating and
its S&P Rating at any time, the applicable percentage for calculation of the
Letter of Credit Fee shall be 0.375%. If, subsequent to losing such ratings, the
Borrower is able to again obtain such ratings, the above table shall, from and
after the date of such occurrence (until such time, if any, that the Borrower
again loses such ratings), govern the Letter of Credit Fee.
In addition to the foregoing fee, the Borrower shall pay in advance to the
Co-Agent issuing such Letter of Credit, at the times specified above in this
Section 4.6, for such Co-Agent's own account, an additional fee equal to
one-eighth of one percent (1/8%) per annum on the Maximum Drawing Amount of such
Letter of Credit.
In the event that any Letter of Credit shall be terminated or cancelled
prior to the anniversary of the issuance thereof, the Letter of Credit Fees for
such period shall be recalculated, and, to the extent any excess Letter of
Credit Fees were paid as a result of such termination or cancellation, the
Borrower shall receive a credit (to be applied in such manner as the Borrower
and the applicable Co-Agent may agree) in the amount of such excess.
4.7 Additional Cash Collateral Provisions. A pro rata portion of any cash
collateral securing Letters of Credit not otherwise refunded or applied in
accordance with this Credit Agreement shall in any event be refunded to the
Borrower upon cancellation, or fourteen (14) days following expiration, of any
Letter of Credit secured by such cash collateral. In the event of refunding of
any cash collateral, or any portion thereof, to the Borrower as provided in or
pursuant to this Credit Agreement, the Administrative Agent shall refund to the
Borrower an amount equal to the full amount of such cash collateral provided by
the Borrower, or the applicable portion thereof, as the case may be, plus
accrued interest thereon for the period from the most recent date on which such
interest has been paid to, but not including, the date of such refund. Interest
on cash collateral shall accrue to the benefit of the Borrower, at a rate equal
to the Administrative Agent's Overnight Investment Rate, and shall be paid to
the Borrower quarterly in arrears five (5) Business Days following the end of
each calendar quarter and, in any case, on the date of refund as to any portion
of cash collateral being refunded, as set forth above.
33
<PAGE>
5. CERTAIN GENERAL PROVISIONS.
5.1 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.
5.2 Funds for Payments.
5.2.1 Payments to Co-Agents, Administrative Agent. All payments of
principal, interest, commitment fees, Reimbursement Obligations, Letter of
Credit Fees and any other amounts due hereunder or under any of the other Loan
Documents shall be made to any of the Co-Agents or the Administrative Agent, for
the respective accounts of the Banks, the Co-Agents and the Administrative
Agent, at the Co-Agent's Head Office or the Administrative Agent's Head Office,
as the case may be, or at such other location that the Co-Agents or the
Administrative Agent may from time to time designate, in each case in
immediately available funds or directly from the proceeds of Loans.
5.2.2 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, the Co-Agents 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
Co-Agents or 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, the Co-Agent or the
Administrative Agent to receive the same net amount which the Banks, the
Co-Agent 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 any of the Co-Agents, 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.
5.2.3 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.
34
<PAGE>
5.3 Computations. All computations of interest with respect to Alternative
Base Rate Loans (including, without limitation, interest computations with
respect to any Absolute Rate Loan or Letter of Credit Fees) shall be based 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 Swing Loans shall be
based on a year of 360 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.
5.4 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.
5.5 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 5.5 other
than on the last day of an Interest Period, including any interest or fees
payable by such Bank to lenders of funds obtained by it in order to make or
maintain its Eurodollar Rate Loans or Competitive Bid Eurodollar Loans
hereunder.
5.6 Additional Costs, Etc. If any present or future applicable Government
Mandate (whether or not having the force of law), shall:
35
<PAGE>
(a) subject any Bank, any of the Co-Agents 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,
and Letters of Credit, such Bank's Commitment, or the Loans (other than
taxes based upon or measured by the income or profits of such Bank, such
Co-Agent 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, any of
the Co-Agents 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, any of the Co-Agents or the Administrative
Agent any other conditions or requirements with respect to this Credit
Agreement, the other Loan Documents, any Letters of Credit, 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 any
Letter of Credit, or
(ii) to reduce, by an amount deemed by such Bank, such Co-Agent
or the Administrative Agent, as the case may be, to be material, the
amount of principal, interest, or other amount payable to such Bank,
such Co-Agent or the Administrative Agent hereunder on account of such
Bank's Commitment, any Letter of Credit or any of the Loans, or
(iii) to require such Bank, such Co-Agent 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, Reimbursement Obligation or
other sum that, but for such conditions or requirements described in
clauses (a) through (d), would be payable to such Bank, such Co-Agent
or the Administrative Agent hereunder, in any case the amount of which
payment or foregone interest, Reimbursement Obligation or other sum is
deemed by such Bank, such Co-Agent or the Administrative Agent, as the
case may be, to be material and is calculated by reference to the
gross amount of any sum receivable or deemed received by such Bank,
such Co-Agent or the Administrative Agent from the Borrower hereunder,
then, and in each such case, (aa) the Borrower will, upon demand made
by such Bank, such Co-Agent 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 Unpaid Reimbursement Obligations,
and the termination of any Letters of Credit and the Commitments) and
as often as the occasion therefor may arise, pay to such Bank, such
Co-Agent or the Administrative Agent such additional amounts as will
be sufficient to compensate such Bank, such Co-Agent or the
Administrative Agent for such additional cost, reduction, payment,
foregone interest, Reimbursement Obligation or other sum, (bb) the
Borrower shall be entitled,
36
<PAGE>
upon notice to the Administrative Agent, each Co-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 and Unpaid Reimbursement Obligations 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 pay to the Administrative
Agent an amount equal to, but not less than such Bank's pro rata share
of the then Maximum Drawing Amount on all Letters of Credit, which
amount shall be held by the Administrative Agent as cash collateral
for the benefit of such Bank and the relevant Co-Agent for its share
of all Reimbursement Obligations, 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 and Unpaid
Reimbursement Obligations 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, and require the Borrower to
pay to the Administrative Agent an amount equal to, but not less than,
such Bank's pro rata share of the then Maximum Drawing Amount on all
Letters of Credit, which amount shall be held by the Administrative
Agent as cash collateral for the benefit of such Bank and the relevant
Co-Agent for its share of all Reimbursement Obligations. Subject to
the terms specified above in this Section 5.6, the obligations of the
Borrower under this Section 5.6 shall survive repayment of the Loans
and all Unpaid Reimbursement Obligations and termination of any
Letters of Credit and the Commitments.
5.7 Capital Adequacy. If after the date hereof any Bank, any Co-Agent 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, such Co-Agent or the
Administrative Agent, or any corporation controlling such Bank, such Co-Agent 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, such
Co-Agent's or the Administrative Agent's commitment with respect to any Loans to
a level below that which such Bank, such Co-Agent or the Administrative Agent
could have achieved but for such adoption, change, or compliance (taking into
consideration such Bank's, such Co-Agent'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, such
Co-Agent or (as the case may be) the Administrative Agent to be material, then
such Bank, such Co-Agent 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, such Co-Agent 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, such Co-Agent or (as the
case may be) the Administrative Agent of a certificate in accordance with
Section 5.8 hereof (but in any case not 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, each Co-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
and/or such Co-Agent, together with all accrued and unpaid interest on such
Loans and any other
37
<PAGE>
amounts owing to such Bank and/or such Co-Agent 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 and/or any Co-Agent
under clause (bb), each other Bank and Co-Agent 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 and Co-Agent,
together with all accrued and unpaid interest on such Loans and any other
amounts owing to such other Bank or Co-Agent under the Loan Documents. Each Bank
and each Co-Agent 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 5.7, the obligations of the Borrower under this Section 5.7 shall
survive repayment of the Loans and termination of the Commitments.
5.8 Certificate. A certificate setting forth any additional amounts payable
pursuant to Section 5.6 or Section 5.7 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, any of the Co-Agents or the
Administrative Agent to the Borrower, shall be conclusive evidence, absent
manifest error, that such amounts are due and owing.
5.9 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 5.9 shall survive repayment of the Loans and termination of the
Commitments.
5.10 Interest After Default. All amounts outstanding under the Loan
Documents that are not paid when due, including all overdue principal, Unpaid
Reimbursement Obligations 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.
6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks, the Co-Agents and the
Administrative Agent as follows:
38
<PAGE>
6.1 Corporate Authority.
6.1.1 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.
6.1.2 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.
6.1.3 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.
6.1.4 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.
6.2 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 6.2.
6.3 Liens; Leases. The assets reflected in the consolidated balance sheet
of the Borrower dated as of December 31, 1997 and delivered to the
Administrative Agent and the Banks under Section 6.4 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.
39
<PAGE>
6.4 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, 1997, 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, 1998, 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 Reports on Form 10-Q for such fiscal quarters. 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 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.
6.5 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,
1998 that has resulted in a Material Effect.
6.6 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.
6.7 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.
40
<PAGE>
6.8 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.
6.9 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.
6.10 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.
6.11 No Event of Default. No Default or Event of Default has occurred and
is continuing.
6.12 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
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 8.6(b)) is an "investment
company", as such term is defined in the 1940 Act.
6.13 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.
6.14 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
41
<PAGE>
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.
6.15 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 ss.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 ss.4001 of 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.
6.16 Regulations U and X. The proceeds of the Loans shall be used by the
Borrower (i) to refinance advances outstanding under that certain Revolving Loan
Agreement, dated as of February 23, 1996, among the Borrower, The First National
Bank of Boston, individually and as agent, and the lenders named therein, as
amended 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) to support the Borrower's
issuance of commercial paper, (iv) for general partnership purposes and working
capital purposes, including, without limitation, acquisitions and (v) capital
expenditures. The Borrower will obtain Letters of Credit solely for the purposes
set forth in the immediately preceding clauses (i) through (v). No portion of
any Loan is to be used, and no portion of any Letter of Credit is to be
obtained, 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.
6.17 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 ("SARA"), the Federal Clean
Water Act, the Federal Clean Air Act, and the Toxic Substances Control
42
<PAGE>
Act (hereinafter "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 300 Appendix B (1986); (ii) that any hazardous waste, as defined by 42
U.S.C. ss.9601(5), any hazardous substances as defined by 42 U.S.C.
ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C.
ss.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; and
(i) 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;
(ii) no underground tank or other underground storage receptacle
for Hazardous Substances is located on any portion of the Real Estate;
(iii) 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;
(iv) 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;
(v) 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 (A) may have come to be located on the Real Estate through
soil or groundwater contamination, and, (B) if so located, would have
a material adverse effect on the value of the Real Estate or the
environment; and
(vi) 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.
6.18 Subsidiaries, Etc. Schedule 6.18 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 number
43
<PAGE>
of authorized and outstanding Equity Securities of each class of each Subsidiary
of the Borrower and the number and percentage thereof owned, directly or
indirectly, by the Borrower, and (c) any partnership or joint venture in which
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.
6.19 Funded Debt. Schedule 6.19 sets forth as of the Closing Date all
outstanding Funded Debt of the Borrower and its Subsidiaries.
6.20 General. The Borrower's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, and Quarterly Reports on Form 10-Q referred to in
Section 6.4 (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.
7. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit, or Note is outstanding or any Bank
or Co-Agent has any obligation to make any Loans or any Co-Agent has any
obligation to issue, extend, or renew any Letters of Credit:
7.1 Punctual Payment. The Borrower will duly and punctually pay or cause to
be paid the principal and interest on the Loans, all Reimbursement Obligations,
the Letter of Credit Fees, 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.
7.2 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.
7.3 Records and Accounts. The Borrower will, and will cause each of its
Subsidiaries to, keep complete and accurate records and books of account.
7.4 Financial Statements, Certificates, and Information. The Borrower will
deliver to each of the Banks:
(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;
44
<PAGE>
(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 7.4(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 7.3; (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 7.3, Section 8, and
Section 9 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
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 M hereto and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in Section 9 and (if
applicable) reconciliations to reflect changes in GAAP since December 31, 1997;
(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, the Co-Agents
45
<PAGE>
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 7.4(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, the Co-Agents 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, the
Co-Agents 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, such
Co-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, such Co-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, such Co-Agent
or such Bank or to report to the public concerning the industry of which the
Agent or such Bank is a part; provided, however, that none of the Administrative
Agent, the Co-Agents and the Banks shall be liable to the Borrower or any other
Person for damages arising hereunder from the disclosure of non-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).
7.5 Notices.
7.5.1 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, 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.
7.5.2 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
46
<PAGE>
Authority of potential environmental liability, that has the potential, in the
Borrower's reasonable judgment, to have a Material Effect.
7.5.3 Notice of Proceedings and Judgments. The Borrower will give notice to
the Administrative Agent and each of the Lenders in writing within ten (10)
Business Days of the executive management of the Borrower (as defined in Section
7.5.1) 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 Lenders, 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.
7.5.4 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.
7.6 Existence; Business; Properties.
7.6.1 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,
47
<PAGE>
however, this section shall not prohibit any merger, consolidation, or
reorganization of the Borrower or any of its Subsidiaries permitted pursuant to
Section 8.2.
7.6.2 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.
7.6.3 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 7.6.3 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.
7.6.4 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.
7.7 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.
7.8 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 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.
7.9 Inspection of Properties and Books, Etc.
7.9.1 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
48
<PAGE>
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 and Letter of
Credit Participations or, if no Loans or Letters of Credit are outstanding,
their respective Commitments), except as otherwise provided by Section 15(f).
Any data and information that is obtained by the Administrative Agent or any
Bank pursuant to this Section 7.9.1 shall be held subject to Section 7.4(e).
7.9.2 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
7.9.2. Any data and information that is obtained by the Administrative Agent or
any Bank pursuant to this Section 7.9.2 shall be held subject to Section 7.4(e).
7.10 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 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.
7.11 Use of Proceeds. The Borrower will use the proceeds of the Loans
solely as provided in Section 6.16. The Borrower will obtain Letters of Credit
solely for the purposes set forth in Section 6.16.
7.12 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.
7.13 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
49
<PAGE>
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 9
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:
(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 25
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 25, 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.
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit, or Note is outstanding or any Bank
or Co-Agent has any obligation to make any Loans or any Co-Agent has any
obligation to issue, extend, or renew any Letters of Credit:
50
<PAGE>
8.1 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;
(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);
and
(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".
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.
8.2 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 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)
51
<PAGE>
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; and
(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 (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;
(iv) such Reorganization does not result in a Change of Control;
(v) after giving effect to such Reorganization, investment
management contracts with respect to at least seventy-five percent
(75%) of the assets under management by the Borrower and the
Consolidated Subsidiaries immediately 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 the Consolidated Subsidiaries prior to such
Reorganization, be held by the Borrower or shall have been duly
assigned to Persons executing and delivering to the Administrative
Agent Assumption Agreements or one or more of its consolidated
Subsidiaries pursuant to clause (iii) above;
(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
52
<PAGE>
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.
8.3 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 8.3;
(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 8.6, 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.
53
<PAGE>
8.4 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 8.1 or an Investment permitted under Section 8.6;
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
8.4;
(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;
54
<PAGE>
(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 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 Co-Agents its
coverage obligation in writing).
8.5 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 8.5 shall not apply to (a) 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 (b)
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).
8.6 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 on the Closing Date and set forth on Schedule
8.6;
(d) Investments made by the Borrower or any Restricted Subsidiary in
the Borrower or any Restricted Subsidiary;
55
<PAGE>
(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); and
(g) Investments (in addition to those specified in clauses (a) through
(f) 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 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.
8.7 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 8.7,
Cursitor Alliance may incur $10,750,000 of Funded Debt pursuant to Section
2.6(c) of the Cursitor Acquisition Agreement. Such $10,750,000 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.
8.8 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
56
<PAGE>
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, is not prohibited under this 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 Agreement.
8.9 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.
8.10 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.
8.11 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.
8.12 Employee Benefit Plans. The Borrower will not, and will not cause,
permit, or suffer any ERISA Affiliate to:
(a) engage in any "prohibited transaction" within the meaning of
ss.406 of ERISA or ss.4975 of the Code that could result in a material
liability for the Borrower and its Consolidated Subsidiaries taken as a
whole;
57
<PAGE>
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in ss.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 ss.302(f) or ss.4068 of ERISA; or
(d) permit or take any action that would result in the aggregate
benefit liabilities (within the meaning of ss.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.
8.13 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, the Co-Agents and the Administrative
Agent under any of the Loan Documents.
9. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit, or Note is outstanding or any Bank
or Co-Agent has any obligation to make any Loans or any Co-Agent has any
obligation to issue, extend, or renew any Letters of Credit:
9.1 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.
(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:
58
<PAGE>
(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).
9.2 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.
9.3 Miscellaneous.
(a) All capitalized terms that are used in this Section 9 without
definition in this 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 9.3).
(b) For purposes of this Section 9, demand obligations shall be deemed to
be due and payable during any fiscal year during which such obligations are
outstanding.
10. 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:
10.1 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 6.4 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.
10.2 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, each Co-Agent and the Administrative Agent shall
have received a fully executed copy of each such document.
10.3 Certified Copies of Charter Documents. Each of the Banks, the
Co-Agents 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
59
<PAGE>
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, the
Co-Agents and the Administrative Agent.
10.4 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,
the Co-Agents 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.
10.5 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, the Co-Agents and the Administrative Agent shall have
each received evidence thereof satisfactory to them.
10.6 Opinions of Counsel. Each of the Banks, the Co-Agents and the
Administrative Agent shall have received a favorable opinion addressed to the
Banks, the Co-Agents and the Administrative Agent, dated as of the Closing Date,
from Brown & Wood LLP, counsel to the Borrower, in the form of Exhibit Q
attached hereto.
10.7 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.
10.8 Incumbency Certificate. Each of the Banks, the Co-Agents 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, Conversion Requests and Swing Loan
Requests and to apply for Letters of Credit; and (c) to give notices and to take
other action on behalf of the Borrower under the Loan Documents.
10.9 Repayment of Existing Obligations. All amounts outstanding under each
of the Existing Credit Agreement shall have been paid in full and the
commitments under each such agreement terminated.
10.10 Fees. The Borrower shall have paid to the Administrative Agent for
the accounts of the Banks all fees then payable.
10.11 Representations and Warranties True; No Defaults. The Co-Agents, 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
Co-Agent, 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
60
<PAGE>
under any material contract or agreement of the Borrower, including, without
limitation, this Credit Agreement and the other Loan Documents.
10.12 Year 2000 Letter. Each of the Banks, the Co-Agents 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.
11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, including the Revolving
Credit Loans, the Competitive Bid Rate Loans and the Swing Loans, and the
obligations of any Co-Agent to issue, extend or renew any Letter of Credit
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, a Competitive Bid Rate Quote Request, a Swing Loan Request or a Letter
of Credit Application 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.
11.1 No Default. No Default or Event of Default shall have occurred and be
continuing.
11.2 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 6.5), 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 or the issuance, extension or
renewal of such Letter of Credit, 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).
11.3 Loan Request or Letter of Credit Application. In the case of a
Revolving Credit Loan (other than a Revolving Credit Loan made under Section
2.8), the Administrative Agent shall have received a Loan Request as provided in
Section 2.7. In the case of a Swing Loan, the applicable Co-Agent shall have
received a Swing Loan Request as provided in Section 2.12. 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 2.13.6. In the case of a Letter of Credit, any of the Co-Agents shall
have received a Letter of Credit Application as provided in Section 4.1.
11.4 Payment of Fees. Without limiting any other condition, the Borrower
shall have paid to the Administrative Agent, for the account of the Banks, the
Co-Agents 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 or the issuance, extension or renewal of such Letter of
Credit.
11.5 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
61
<PAGE>
Mandate) or that in the reasonable opinion of any of the Co-Agents would make it
illegal for such Co-Agent to issue, extend or renew any Letter of Credit.
12. EVENTS OF DEFAULT; ACCELERATION; ETC.
12.1 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 or any Reimbursement Obligation (for which a Revolving Credit
Loan is not made as provided in Section 2.8) 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 7.5.1, 7.6.1, 8.1, 8.2, 8.3,
8.4(x), 8.13, 9, or, if such failure relates to a Lien securing Funded
Debt, 8.4;
(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 12) 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 7.4 or Section 7.5.3 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;
(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, (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
62
<PAGE>
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 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
63
<PAGE>
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 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 10.3 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 10.8, 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 8.2(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 and all
Reimbursement Obligations (including with respect to outstanding undrawn
Letters of Credit) 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 12.1(h) or Section 12.1(i), all such amounts shall become
immediately due and payable automatically and without any requirement of
notice from the Administrative Agent, any Co-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.
12.2 Termination of Commitments. If any one or more of the Events of
Default specified in Section 12.1(h) or Section 12.1(i) shall occur, any unused
portion of the Total Commitment hereunder
64
<PAGE>
shall forthwith terminate and each of the Banks shall be relieved of all
obligations to make Loans to the Borrower and the Co-Agents shall be relieved of
all further obligations to issue, extend or renew Letters of Credit. 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, or if on any date for issuing, extending,
or renewing any Letter of Credit the conditions precedent to issuing, extending,
or renewing such Letter of Credit on such 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 and the Co-Agents shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. 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.
12.3 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 12.1, each Bank, if
owed any amount with respect to the Loans or the Reimbursement Obligations, 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 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, any Co-Agent or the
Administrative Agent or the holder of any Note or purchaser of any Letter of
Credit Participation 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.
12.4 Application of Monies. In the event that, during the continuance of
any Default or Event of Default, the Administrative Agent, any Co-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;
65
<PAGE>
(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, the Co-Agents and the Administrative
Agent with respect to each type of Obligation such as interest, principal,
fees, and expenses, shall be made among the Banks, the Co-Agents 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.
13. 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
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 or constituting Reimbursement Obligations owed to
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 or
constituting Reimbursement Obligations owed to 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, or constituting Reimbursement Obligations owed to, 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, or Reimbursement
Obligations owed to, 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, and
Reimbursement Obligations owed to, 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, 5.8, and 5.9), 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, or Reimbursement Obligations
owed 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.
14. THE ADMINISTRATIVE AGENT.
14.1 Authorization. The Administrative Agent is authorized 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, the Letters of Credit or any of the other Loan Documents
shall be construed to constitute the Administrative Agent as a trustee for any
Bank.
66
<PAGE>
14.2 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.
14.3 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.
14.4 No Representations. The Administrative Agent shall not be responsible
for the execution or validity or enforceability of this Credit Agreement, the
Notes, the Letters of Credit, 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 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.
14.5 Payments.
14.5.1 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 or Co-Agent shall constitute a payment to such
Bank or Co-Agent. The Administrative Agent shall promptly distribute to
each Bank and Co-Agent such Bank's or, as the case may be, Co-Agent, pro
rata share of payments received by the Administrative Agent for the account
of the Banks and the Co-Agents except as otherwise expressly provided
herein or in any of the other Loan Documents.
14.5.2 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
67
<PAGE>
repaid or shall pay over the same in such manner and to such Persons as
shall be determined by such Government Authority.
14.5.3 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, (b) to purchase any Letter of Credit Participation
as, when, and to the full extent required by the provisions of this Credit
Agreement, or (c) to comply with the provisions of Section 13 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, Unpaid Reimbursement Obligations, interest,
fees, or otherwise, to the remaining nondelinquent Banks for application
to, and reduction of, their respective pro rata shares of all outstanding
Loans and Unpaid Reimbursement Obligations. 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 and Unpaid Reimbursement Obligations. 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 and Unpaid Reimbursement Obligations of the non-delinquent Banks, the
Banks' respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment
causing such delinquency.
14.6 Holders of Notes. Subject to Section 18, the Administrative Agent may
deem and treat the payee of any Note or purchaser of any Letter of Credit
Participation 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.
14.7 Indemnity. The Banks ratably shall indemnify and hold harmless the
Administrative Agent from and against any and all Proceedings (whether
groundless or otherwise), losses, damages, costs, expenses (including any
expenses for which the Administrative Agent has not been reimbursed by the
Borrower as required by Section 15), and liabilities of every nature and
character 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 the Administrative Agent's actions taken hereunder or thereunder,
except to the extent that any of the same shall be directly caused by the
Administrative Agent's willful misconduct or gross negligence.
14.8 Administrative Agent and Co-Agents as Banks. In its individual
capacity, NationsBank, N.A., The Chase Manhattan Bank and The Bank of New York
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 and as the purchase of any Letter of Credit Participations, as it
would have were it not also the Administrative Agent and/or a Co-Agent.
14.9 Resignation. The Administrative Agent and/or any Co-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 and/or Co-Agent, as the case
may be. Unless an Event of Default shall have occurred and be continuing, such
successor Administrative Agent and/or Co-Agent shall be reasonably acceptable to
the Borrower. If no
68
<PAGE>
successor Administrative Agent and/or Co-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 and/or Co-Agent's giving of
notice of resignation, then the retiring Administrative Agent and/or Co-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 and/or Co-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/or Co-Agent, and
the retiring Administrative Agent and/or Co-Agent shall be discharged from its
duties and obligations hereunder. After any retiring Administrative Agent's
and/or Co-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 Agent.
14.10 Notification of Defaults and Events of Default. Upon learning of the
existence of a Default or an Event of Default, a Bank or Co-Agent shall promptly
notify the Administrative Agent thereof. Upon receipt of any notice under this
Section 14.10, the Administrative Agent shall promptly notify the other Banks of
the existence of such Default or Event of Default.
14.11 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 to be unlawful or
commercially unreasonable in any applicable jurisdiction.
15. EXPENSES.
The Borrower shall upon demand either, as the Banks, the Co-Agents or the
Administrative Agent may require and regardless of whether any Loans are made
hereunder, pay in the first instance or reimburse the Banks, the Co-Agents 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, any of the
Co-Agents or any of the Banks (other than taxes based upon the Agent's, any
Co-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 Co-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,
(e) the reasonable fees, expenses, and disbursements-of the Administrative Agent
incurred by the Administrative Agent in
69
<PAGE>
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, any Co-Agent or the Administrative
Agent, and reasonable consulting, accounting, appraisal, investment banking, and
similar professional fees and charges) incurred by any Bank, any Co-Agent 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, any Co-Agent'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, the Co-Agents and the Banks, unless any of the
Administrative Agent, the Co-Agents 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, the
Co-Agents and the Banks make separate counsel advisable. The covenants of this
Section 15 shall survive payment or satisfaction of all other Obligations.
16. INDEMNIFICATION.
The Borrower shall, regardless of whether any Loans are made hereunder,
indemnify and hold harmless the Administrative Agent, the Co-Agents and the
Banks, together with their respective shareholders, directors, agents, officers,
Subsidiaries, and Affiliates, from and against any and all 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 or
Letters of Credit, (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
70
<PAGE>
Borrower under this Section 16 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 16 shall survive payment or satisfaction in full of all other
Obligations.
17. 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, the
Co-Agent 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 and the issuance, extension or renewal of any Letters of
Credit, as herein contemplated, and shall continue in full force and effect so
long as any Letter of Credit or 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 or any of the Co-Agents has any obligation to
issue, extend, or renew any Letter of Credit, 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, any Co-Agent
or the Administrative Agent at any time by or on behalf of the 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.
18. ASSIGNMENT AND PARTICIPATION.
18.1 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 its participating interest in the risk
relating to any Letters of Credit) 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, in the case of the Borrower, will not
be unreasonably withheld, provided that, if no Event of Default has occurred and
is continuing, no Bank may assign its rights and obligations hereunder if such
assignment would result in a reduction of or a withdrawal of the then current
rating of the commercial paper notes of the Borrower (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 N 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 18.3, be
released from its obligations under this Credit Agreement.
71
<PAGE>
18.2 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 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 6.4 and Section 7.4 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; (h) such assignee represents and warrants that it is
legally authorized to enter into such Assignment and Acceptance; and (i) such
assignee acknowledges that it has made arrangements with the assigning Bank
satisfactory to such assignee with respect to its pro rata share of Letter of
Credit Fees in respect of outstanding Letters of Credit.
18.3 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, and Letter of Credit Participations purchased by, 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.
18.4 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
72
<PAGE>
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 Acceptance and shall
otherwise be in substantially the form of the assigned Notes. The surrendered
Notes shall be cancelled and returned to the Borrower.
18.5 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 25 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.
18.6 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 7.4(e).
18.7 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 12, and the
determination of the Majority Banks shall for all purposes of this 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 or Reimbursement Obligations 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 12 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 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.
18.8 Miscellaneous Assignment Provisions. Any assigning Bank shall retain
its rights to be indemnified pursuant to Sections 5.8, 5.9, 15, and 16 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 18 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 ss.4
73
<PAGE>
of the Federal Reserve Act, 12 U.S.C. ss.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.
18.9 Assignment by Borrower. 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.
19. 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 or any Letter of Credit Applications 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 1345 Avenue of the Americas, New York, New
York 10105 (Telecopy Number (212) 969-6260), Attention: Treasurer, with a
copy sent via the same means to General Counsel of the Borrower at 1345
Avenue of the Americas, New York, New York 10105 (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 NationsBank, whether individually or as Administrative Agent
or Co-Agent, at 101 North Tryon Street, 15th Floor, NC1-001-15-04,
Charlotte, North Carolina 28255, (Telecopy Number (704) 386-9923),
Attention: CCS/Agency Services, Ref: Alliance Capital Management L.P., with
a copy sent via the same means to Paul, Hastings, Janofsky & Walker LLP,
600 Peachtree Street, N.E., Suite 2400, Atlanta, Georgia 30308-2222
(Telecopy Number: (404) 815-2424), Attention: Chris D. Molen, Esq., or such
other address for notice as such Person shall last have furnished in
writing to the Person giving the notice;
(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.
20. 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 CO-AGENTS,
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
74
<PAGE>
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
19. EACH OF THE ADMINISTRATIVE AGENT, THE CO-AGENTS, 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.
21. HEADINGS.
The captions in this Credit Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
22. 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.
23. 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 25.
24. WAIVER OF JURY TRIAL.
EACH OF THE ADMINISTRATIVE AGENT, THE CO-AGENTS, 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 CO-AGENTS, 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, ANY CO-AGENT OR THE ADMINISTRATIVE AGENT HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH BANK, SUCH CO-AGENT 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, THE
CO-AGENTS 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.
75
<PAGE>
25. 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 5.10 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 or Letter of Credit Fees may not be changed without the written
consent of the Borrower and the 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 25 nor the definition of Majority Banks
may be amended without the written consent of all of the Banks; and the amount
of the Agent's fee or Letter of Credit Fees and Section 14 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
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.
26. 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
76
<PAGE>
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, General Partner
By: /s/ Anne S. Drennan
-------------------------------------------
Name: Anne S. Drennan
Title: Senior Vice President and Treasurer
[Signature Pages Continued]
<PAGE>
NATIONSBANK, N.A, as Administrative Agent
By: /s/ Ken Ricciardi
--------------------------------
Name: Ken Ricciardi
Title: Senior Vice President
[Signature Pages Continued]
<PAGE>
THE CHASE MANHATTAN BANK, as
Syndication Agent
By: /s/ David J. Cintron
--------------------------------
Name: David J. Cintron
Title: Vice President
[Signature Pages Continued]
<PAGE>
THE BANK OF NEW YORK, as Documentation Agent
By: /s/ Lee B. Stephens, III
--------------------------------
Name: Lee B. Stephens, III
Title: Vice President
[Signature Pages Continued]
<PAGE>
NATIONSBANK, N.A., as Co-Agents
By: /s/ Ken Ricciardi
--------------------------------
Name: Ken Ricciardi
Title: Senior Vice President
[Signature Pages Continued]
<PAGE>
THE CHASE MANHATTAN BANK, as Co-
Agent
By: /s/ David J. Cintron
--------------------------------
Name: David J. Cintron
Title: Vice President
[Signature Pages Continued]
<PAGE>
THE BANK OF NEW YORK, as Co-Agent
By: /s/ Lee B. Stephens, III
--------------------------------
Name: Lee B. Stephens, III
Title: Vice President
[Signature Pages Continued]
<PAGE>
NATIONSBANK, N.A., as a Bank
By: /s/ Ken Ricciardi
---------------------------------
Name: Ken Ricciardi
Title: Senior Vice President
[Signature Pages Continued]
<PAGE>
THE CHASE MANHATTAN BANK, as a Bank
By: /s/ David J. Cintron
--------------------------------
Name: David J. Cintron
Title: Vice President
[Signature Pages Continued]
<PAGE>
THE BANK OF NEW YORK, as a Bank
By: /s/ Lee B. Stephens, III
---------------------------------
Name: Lee B. Stephens, III
Title: Vice President
[Signature Pages Continued]
<PAGE>
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES, as a Bank
By: /s/ John S. McGill
---------------------------------
Name: John S. McGill
Title: Vice President
By: /s/ Jonathan B.P. Mendes
---------------------------------
Name: Jonathan B.P. Mendes
Title: Vice President
[Signature Pages Continued]
<PAGE>
REVOLVING COMMITMENT VEHICLE
CORPORATION
By: Morgan Guaranty Trust Company of New York,
As Attorney-in-Fact for Revolving Commitment
Vehicle Corporation
By: /s/ David Weintrub
-----------------------
Name: David Weintrub
Title: Vice President
[Signature Pages Continued]
<PAGE>
FLEET NATIONAL BANK, as a Bank
By: /s/ Jan-Gee McCollam
-----------------------
Name: Jan-Gee McCollam
Title: Senor Vice President
[Signature Pages Continued]
<PAGE>
COMMERZBANK AG, NEW YORK
BRANCH, as a Bank
By: /s/ William M. Earley
-----------------------
Name: William M. Earley
Title: Vice President
By: /s/ Joseph J. Hayes
-----------------------
Name: Joseph J. Hayes
Title: Assistant Vice President
[Signature Pages Continued]
<PAGE>
DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH, as a Bank
By: /s/ Anthony C. Valencourt
---------------------------
Name: Anthony C. Valencourt
Title: Senior Vice President
By: /s/ RAJIV GUPTA
---------------------------
Name: Rajiv Gupta
Title: Associate
[Signature Pages Continued]
<PAGE>
THE FIRST NATIONAL BANK OF
CHICAGO, as a Bank
By: /s/ Nicole Holzapfel
--------------------------
Name: Nicole Holzapfel
Title: Vice President
[Signature Pages Continued]
<PAGE>
STATE STREET BANK
AND TRUST COMPANY, as a Bank
By: /s/ Anne Marie Gualtieri
---------------------------
Name: Anne Marie Gualtieri
Title: Vice President
<PAGE>
SCHEDULE 1
BANKS AND COMMITMENTS
<TABLE>
<CAPTION>
---------------------------------------------------------------------
Banks and Addresses Commitment Commitment
Percentage
---------------------------------------------------------------------
<S> <C> <C>
NationsBank, N.A. $65,000,000 15.29411765%
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn:CCS/Agency Services
Ref: Alliance Capital Management L.P.
Facsimile: (704) 386-9923
---------------------------------------------------------------------
The Chase Manhattan Bank $59,000,000 13.88235294%
270 Park Avenue
36th Floor
New York, NY 10017
Attn: David J. Cintron
Facsimile Number: (212) 270-1789
---------------------------------------------------------------------
The Bank of New York $59,000,000 13.88235294%
One Wall Street, 7th Floor
New York, NY 10286
Attn: Lee B. Stephens, III
Facsimile Number: (212) 635-6348
---------------------------------------------------------------------
Deutsche Bank AG, New York and/or $35,000,000 8.23529412%
Cayman Islands Branches
31 West 52nd Street
New York, NY 10019
Attn: Peter J. Bassler
Facsimile Number: (212) 474-8386
---------------------------------------------------------------------
Revolving Commitment Vehicle $35,000,000 8.23529412%
Corporation
By: Morgan Guaranty Trust Company of
New York, as Attorney-in-Fact
for Revolving
Commitment Vehicle Corporation
60 Wall Street, 22nd Floor
New York, NY 10260-0060
Attn: Linda Winter-Irving
Facsimile Number: (212) 648-5249
---------------------------------------------------------------------
Fleet National Bank $35,000,000 8.23529412%
777 Main Street
Hartford, CT 06115
Attn: Jan-Gee McCollam
Facsimile Number: (860) 986-1264
---------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------
Banks and Addresses Commitment Commitment
Percentage
---------------------------------------------------------------------
<S> <C> <C>
CommerzBank AG, New York Branch $35,000,000 8.23529412%
2 World Financial Center
New York, NY 10281-1050
Attn: Joe Hayes
Facsimile Number: (212) 266-7629
---------------------------------------------------------------------
Dresdner Bank, AG, New York Branch and $35,000,000 8.23529412%
Grand Cayman Branch
75 Wall Street
New York, NY 10005
Attn: Robert P. Donohue
Facsimile Number: (212) 429-2524
---------------------------------------------------------------------
The First National Bank of Chicago $35,000,000 8.23529412%
153 W. 51st Street
6th Floor
New York, NY 10019
Attn: Nicole Holzapfel
Facsimile Number: (212) 373-1393
---------------------------------------------------------------------
State Street Bank and Trust Company $32,000,000 7.52941176%
1776 Heritage Drive
No. Quincy, MA 02171
Attn: Anne Marie Gualtieri
Facsimile Number: (617) 537-1196
---------------------------------------------------------------------
TOTAL $425,000,000 100%
---------------------------------------------------------------------
</TABLE>
<PAGE>
Alliance Capital Management L.P.
Schedule 6.2 - Governmental Approvals
May 31, 1998
None.
<PAGE>
Alliance Capital Management L.P.
Schedule 6.18 - Subsidiaries
June 1, 1998
<TABLE>
<CAPTION>
Percentage of Voting Stock
Owned by Company &
Name of Subsidiary Jurisdiction of Formation Each Other Subsidiary
- ------------------- ------------------------- ---------------------
<S> <C> <C>
Alliance Capital Management Corporation of Delaware* Delaware 100%
Alliance Fund Distributors, Inc.* Delaware 100%
Alliance Barra Research Institute Inc.* Delaware 100%
Alliance Corporate Finance Group Inc. Delaware 100%
Alliance Capital Oceanic Corporation* Delaware 100%
Alliance Capital Global Derivatives Corporation* Delaware 100%
ACM CIIC Investment Management Limited* Cayman Islands 54%
Alliance Fund Services, Inc.* Delaware 100%
Alliance Capital Management Canada Inc.* Canada 100%
Alliance Capital Management (Brasil) Ltda.* Brazil 100%
Alliance Eastern Europe Inc.* Delaware 100%
ACM Software Services Ltd.* Delaware 100%
Alliance Capital Limited * United Kingdom 100%
East Fund Managementberatung GmbH* Austria 51%
Alliance Capital Management (Turkey) Ltd.* Delaware 100%
Alliance Capital Services Ltd.* United Kingdom 100%
Alliance Capital (Luxembourg) S.A.* Luxembourg 100%
ACM Fund Services S.A.* Luxembourg 100%
Dimensional Trust Management Limited* United Kingdom 100%
ACM Fund Services (Espana) S.L.* Spain 100%
Alliance Capital Management (Singapore) Ltd.* Singapore 100%
Alliance Capital Management (Asia) Ltd.* Delaware 100%
Alliance Capital Management (Japan) Inc.* Delaware 100%
Alliance Capital Management Australia Ltd.* Australia 100%
Alliance Capital Investment Trust Management K.K.* Japan 100%
Alliance Capital (Mauritius) Private Limited* Mauritius 100%
Alliance Investment Opportunities Management, L.L.C.* Delaware 100%
Aliance Odyssey Capital Management (Proprietary) Ltd.* South Africa 80%
ACSYS Software India Pvt. Ltd.* India 51%
Alliance Capital Asset Management (India) Private Ltd.* India 75%
Cursitor Alliance LLC* Delaware 93%
Cursitor Alliance Holdings Limited* United Kingdom 93%
Draycott Partners, Ltd.* Massachusetts 93%
Cursitor Alliance Services Limited* United Kingdom 93%
Cursitor Management Co. SA* Luxembourg 93%
Cursitor Management Ltd.* United Kingdom 93%
Cursitor Cecogest SA* France 93%
Cursitor Courtage SARL* France 93%
Cursitor Gestion SA* France 93%
Cursitor-Eaton Asset Management Company * New York 93%
Meiji-Alliance Capital Corporation Delaware 50%
BCN Alliance Capital Management S.A. Brazil 50%
Przymierze Trust Fund Company Poland 49%
Alliance SBS-AGRO Capital Management Company Russia 49%
New-Alliance Asset Management (Asia) Limited Hong Kong 50%
ACM New-Alliance (Luxembourg) S.A. Luxembourg 50%
Albion Alliance LLC Delaware 40%
Hanwha Investment Trust Management Company, Ltd. Korea 20%
</TABLE>
* Restricted Subsidiaries of Alliance Capital Management L.P.
<PAGE>
ALLIANCE CAPITAL MANAGEMENT L.P.
SCHEDULE 6.19 - FUNDED DEBT
MAY 31, 1998
<TABLE>
<CAPTION>
<S> <C>
Portion of Letter of Credit opened with
State Street Bank and Trust by Alliance
Capital Management L.P., Alliance Fund
Services, Inc., Alliance Fund
Distributors Inc. and U.S. Registered
Mutual Funds managed by the Company in
favor of the ICI Mutual Insurance
Company ("ICI Mutual") and related
undertaking to commit additional capital
by ACMLP to ICI Mutual $ 592,000
Promissory Note payable to Equitable Capital Partners, L.P. 1,527,810
Promissory Note payable to Equitable Capital Partners
(Retirement Fund), L.P. 862,051
Cursitor Alliance LLC 6% Promissory Notes 10,750,000
Commercial Paper 96,791,991
Cursitor Minority Interest Acquisition 10,000,000
-------------
Total Funded Debt $ 120,523,852
=============
</TABLE>
<PAGE>
Schedule 8.4
Permitted Liens
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
Jurisdiction Secured Party Filing File No. Date Collateral
Found Filed
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
New York AT&T Credit Corporation UCC-1 152358 7-15-93 Leased Equipment
Department
of State --------------------------------------------------------------------------------------
Pitney Bowes Credit UCC-1 238093 11-12-93 Leased Equipment
Corporation
------------------------------------------------------------
UCC-1 238094 11-12-93 Leased Equipment
--------------------------------------------------------------------------------------
Jacom Computer Services, UCC-1 117054 6-9-95 Leased Equipment
Inc.
--------------------------------------------------------------------------------------
AT&T Credit Corporation UCC-1 148514 7-26-96 Leased Equipment
--------------------------------------------------------------------------------------
IBM Credit Corporation UCC-1 224529 10-30-97 Leased Equipment
--------------------------------------------------------------------------------------
American Business Credit UCC-1 005107 1-9-98 Leased Equipment
Corporation
--------------------------------------------------------------------------------------
AT&T Capital Leasing UCC-1 019028 1-28-98 Leased Equipment
--------------------------------------------------------------------------------------
Danka Business Systems UCC-1 023159 2-2-98 Leased Equipment
and AT&T Capital Leasing
Services, Inc. as
Assignee
--------------------------------------------------------------------------------------
EMC Corporation and UCC-1 041597 2-26-98 Leased Equipment
MetLife Capital
Corporation as Assignee
--------------------------------------------------------------------------------------
MetLife Capital UCC-3 072741 4-6-98 Assignment of original file
Corporation and EMC no. 041597 filed 2-26-98
Corporation as Assignee assigning the collateral
back to EMC Corporation
--------------------------------------------------------------------------------------
EMC Corporation and Banc UCC-3 124127 6-10-98 Assignment of original file
One Leasing Corporation no. 041597 filed 2-26-98
as Assignee to Banc One
Leasing Corporation
- -----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Jurisdiction Secured Party Filing File No. Date Collateral
Found Filed
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
New York Pitney Bowes Credit UCC-1 046721 3-5-98 Leased Equipment
Department Corporation
of State -----------------------------------------------------------
UCC-1 046724 3-5-98 Leased Equipment
-----------------------------------------------------------
UCC-1 046725 3-5-98 Leased Equipment
- ---------------------------------------------------------------------------------------------------------
New York County, AT&T Credit Corporation UCC-1 93PN36387 7-15-93 Leased Equipment
City Register
-------------------------------------------------------------------------------------
IBM Credit Corporation UCC-1 97PN52610 11-07-97 Leased Equipment
-------------------------------------------------------------------------------------
American Business Credit UCC-1 98PN01407 1-9-98 Leased Equipment
Corporation
-------------------------------------------------------------------------------------
AT&T Capital Leasing UCC-1 98PN05356 2-2-98 Leased Equipment
-------------------------------------------------------------------------------------
Danka Business Systems UCC-1 98PN05681 2-4-98 Leased Equipment
and AT&T Capital Leasing
Services, Inc. as
Assignee
-------------------------------------------------------------------------------------
EMC Corporation and UCC-1 98PN10751 3-4-98 Leased Equipment
MetLife Capital
corporation as assignee
-------------------------------------------------------------------------------------
MetLife Capital UCC-3 98PN18318 4-13-98 Assignment of all
Corporation collateral or [final]
financing statement no.
98PN10751 file 3-4-98 to
EMC Corporation
- ---------------------------------------------------------------------------------------------------------
New Jersey Pitney Bowes Credit UCC-1 1541789 11-24-93 Leased Equipment
Secretary of State Corporation
-------------------------------------------------------------------------------------
Federal Leasing UCC-1 1608795 12-14-94 Leased Equipment
Corporation
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Jurisdiction Secured Party Filing File No. Date Collateral
Found Filed
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
New Jersey Federal Leasing UCC-3 1608795 2-09-95 Full assignment of the
Secretary of State Corporation collateral on Financing
Statement # 1608795
filed 12-14-94
to Advanta Leasing Corp.
- -------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
ALLIANCE CAPITAL MANAGEMENT L.P.
SCHEDULE 8.6 - INVESTMENTS
MAY 31, 1998
<TABLE>
<S> <C>
Alliance Mutual Funds and Deposit Products:
Various Seed Money Investments $ 3,219,511
-----------
Other Investments in Alliance Mutual Funds and Deposit Products:
ACM Institutional Reserves - Prime Portfolio 48,398,975
Alliance Capital Reserves 91
Alliance Government Reserves 1,271
Alliance Insured Account 655,125
Alliance Municipal Trust - General 21,039
Alliance Municipal Trust - N.Y 1,297
Alliance Technology Fund 147,922
Global SI Trust 1,000,000
International Premier Growth 1,000,000
Premier Growth Fund 2,248,265
-----------
Sub-total Other Investments in Alliance
Mutual Funds and Deposit Products 53,473,984
-----------
Total Investments in Alliance Mutual Funds $56,693,495
===========
Other Investments:
ICI Mutual Insurance Company $ 386,632
-----------
Joint Ventures:
Meiji - Alliance Capital Corporation (common stock 71,925
par value $1.00 per share, 100,000 shares authorized)
Przymierze Trust Fund Company 406,407
New Alliance 1,313,939
BCN Alliance 938,406
East Fund Management 207,345
Alliance Scan East Fund, L.P. 76,927
SBS - AGRO 345,033
Hanwha Securities 3,538,478
-----------
Sub-total Joint Ventures 6,898,460
-----------
</TABLE>
<PAGE>
ALLIANCE CAPITAL MANAGEMENT L.P.
SCHEDULE 8.6 - INVESTMENTS
MAY 31, 1998
<TABLE>
<S> <C>
Partnerships:
Equitable Capital Partners L.P. 1,140,293
Equitable Capital Partners Retirement Fund L.P. 755,570
Alliance Alpha I Partners L.P. 900,938
Alpha I 2,892,337
Alliance Alpha Management (DEF) 7,300,335
Czech Direct Equity Fund, L.P. 25,000
HME Global Partnership L.P. 89,580
Cursitor Eaton East Asian Equity Fund L.P. 577,441
Equitable Capital Diversified Holdings L.P. II 56,666
Equitable Deal Flow Fund L.P. 1,986
ECM Fund, L.P. I 23,678
Other 89,208
-----------
Sub-total Partnerships 13,853,032
-----------
Total Other Investments $21,138,124
===========
Promissory Note issued by Alliance Capital
Management L.P. payable on demand to the order of
Alliance Corporate Finance Group Incorporated $ 5,000,000
===========
Keepwell Agreement issued by Alliance Capital
Management L.P. in favor of Alliance Corporate
Finance Group Incorporated $10,000,000
===========
Note Receivable from Albion Alliance LLC $ 1,161,616
===========
</TABLE>
<PAGE>
Exhibit A 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 NationsBank, N.A., individually and as
administrative agent (the "Administrative Agent") for the Banks listed on
Schedule 1 of the Credit Agreement and Co-Agents listed on the signature pages
to 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 Co-Agents, The Chase Manhattan Bank,
individually and as syndication agent, The Bank of New York, individually and as
documentation agent, and the Administrative Agent have entered into that certain
Revolving Credit Agreement dated as of July 20, 1998 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, Section 8 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 [**8.1(c), or 8.2(a), or 8.2(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, the Co-Agents and the Administrative Agent hereby agree as
follows:
Section I. Assumption.
1. 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
<PAGE>
with the Borrower and the Other Obligors, shall pay to the order of the Banks,
the Co-Agents 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 7.6.4 of
the Credit Agreement only to the extent required by Government Mandate.
2. [**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 8.1(c) provided the Borrower will survive the transfer
and (b) Reorganizations between Restricted Subsidiaries under Credit Agreement
Section 8.2(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 8.2(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 with respect to at least
seventy-five percent (75%) of the assets under management by the Borrower and
the Consolidated Subsidiaries immediately prior to such Reorganization will, if
held by the Borrower and/or one or more of the Consolidated Subsidiaries prior
to such Reorganization, be held by the Company and its Consolidated
Subsidiaries. For this alternative, the Banks, the Co-Agents, 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 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 the Co-Agents shall be relieved of all obligations to make
Swing Loans or to issue, extend or renew any Letter of Credit, 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
-2-
<PAGE>
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.
3. [**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 or issuance, extensions or renewals of
Letters of Credit 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 either of the Co-Agents, 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,
Co-Agents, the Administrative Agent, any Bank or any other Person; or
(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.
4. [**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.
5. [**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.
-3-
<PAGE>
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, each Co-Agent and each Bank the following documents,
each of which shall be reasonably satisfactory to the Administrative Agent, each
Co-Agent and each of the Banks in form and substance:
1. (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.
2. 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 8.2(c)(vi) of the Credit Agreement, any diminution in the
aggregate net worth of the Borrower (if it survives the Transaction), the
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.
3. 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, the Co-Agents 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.
4. An opinion of Brown & Wood LLP, or other counsel to the Company
reasonably satisfactory to the Administrative Agent, the Co-Agents 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") .
-4-
<PAGE>
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, the Co-Agents
and the Banks that:
1. 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.
2. 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 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.
3. 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.
4. 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.
5. 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.
-5-
<PAGE>
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.
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 19 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.
-6-
<PAGE>
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
NATIONSBANK, N.A.
individually and as Administrative Agent
By:_________________________
Authorized Signatory
[**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**]
-7-
<PAGE>
Exhibit B to the
Credit Agreement
REVOLVING CREDIT NOTE
July 20, 1998
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
July 20, 1998 (as amended and in effect from time to time, the "Credit
Agreement"), among the Borrower, NationsBank, N.A., individually and as
administrative agent, The Chase Manhattan Bank, individually and as syndication
agent, The Bank of New York, individually and as documentation agent, the
Co-Agents identified therein, 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.
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
<PAGE>
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 19 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.
-2-
<PAGE>
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:______________________________
<PAGE>
GRID FOR REVOLVING CREDIT LOANS
<TABLE>
<CAPTION>
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made by:
---- ------- -------------- ---------- --------
<S> <C> <C> <C> <C>
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
</TABLE>
-4-
<PAGE>
Exhibit C to the
Credit Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
_______________ ___, 199__/200_
NationsBank, N.A.
101 North Tryon Street
Charlotte, North Carolina 28259
Attention: ______________________
Re: Loan Request under the Revolving Credit Agreement dated as of July 20,
1998
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of July
20, 1998 (the "Credit Agreement") among Alliance Capital Management L.P., a
Delaware limited partnership, NationsBank, N.A., individually and as
administrative agent, The Chase Manhattan Bank, individually and as syndication
agent, The Bank of New York, individually and as documentation agent, the
Co-Agents, and certain other 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 11 of the Credit Agreement
have been duly satisfied or waived.
<PAGE>
Very truly yours,
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:___________________________________
Name:_________________________________
Title:________________________________
-2-
<PAGE>
Exhibit D to the
Credit Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
_________________________ ____, [19___/200__]
NationsBank, N.A.
101 North Tryon Street
Charlotte, North Carolina 28255
Attention:
Re: Confirmation of Loan Request under the Revolving Credit Agreement
dated as of July 20, 1998
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of July
20, 1998 (the "Credit Agreement") among Alliance Capital Management L.P.,
NationsBank, N.A., individually and as administrative agent, The Chase Manhattan
Bank, individually and as syndication agent, The Bank of New York, individually
and as documentation agent, the Co-Agents identified therein, and certain other
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 conditions precedent to the Loan requested as described
above that are set forth in Section 11 of the Credit Agreement have been duly
satisfied or waived.
<PAGE>
Very truly yours,
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:__________________________________
Name:________________________________
Title:_______________________________
-2-
<PAGE>
Exhibit E to the
Credit Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
________________________ ____,[199__/200__]
NationsBank, N.A.
101 North Tryon Street
Charlotte, North Carolina 28255
Attention:_______________________
Re: Conversion Request under the Revolving Credit Agreement dated as of
July 20, 1998
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of July
20, 1998 (the "Credit Agreement") among Alliance Capital Management L.P.,
NationsBank, N.A., individually and as administrative agent, The Chase Manhattan
Bank, individually and as syndication agent, The Bank of New York, individually
and as documentation agent, the Co-Agents identified therein and certain other
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 2.9.4 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 continuing and (d) the requests set forth in this
letter are made in accordance with the terms and conditions of the Credit
Agreement.
<PAGE>
Very truly yours,
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:__________________________________
Name:________________________________
Title:_______________________________
-2-
<PAGE>
Exhibit F to the
Credit Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
__________________________ _____,[199__/200__]
NationsBank, N.A.
101 North Tryon Street
Charlotte, North Carolina 28259
Attention:_______________________
Re: Confirmation of Conversion Request under the Revolving Credit
Agreement dated as of July 20, 1998
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of July
20, 1998 (the "Credit Agreement") among Alliance Capital Management L.P.,
NationsBank, N.A., individually and as administrative agent, The Chase Manhattan
Bank, individually and as syndication agent, The Bank of New York, individually
and as the documentation agent, the Co-Agents identified therein and certain
other 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 2.9.4 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 and is continuing and (d) the requests confirmed
in this letter were made in accordance with the
<PAGE>
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:_______________________________
-2-
<PAGE>
Exhibit G to the
Credit Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
______________________ _____, [199__/200__]
NationsBank, N.A.
101 North Tryon Street
Charlotte, North Carolina 28255
Attention:________________________________
The Chase Manhattan Bank
270 Park Avenue
36th Floor
New York, New York 10017
Attention:________________________________
or
The Bank of New York
One Wall Street
17th Floor
New York, New York 10286
Attention:________________________________
Re: Swing Loan Request under the Revolving Credit Agreement dated as of July
20, 1998
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of July
20, 1998 (the "Credit Agreement") among Alliance Capital Management L.P.,
NationsBank, N.A., individually and as administrative agent, The Chase Manhattan
Bank, individually and as syndication agent, The Bank of New York, individually
and as documentation agent, the Co-Agents, and certain other 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 2.12 of the Credit Agreement, we hereby request that a
Swing Loan
<PAGE>
in the principal amount 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 Swing Loans on today's date is $____________ (b) the aggregate principal
amount of the Swing Loans to be outstanding on the Drawdown Date for the Swing
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 Swing 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 11 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:_______________________________
-2-
<PAGE>
Exhibit H to the
Credit Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
________________________ ____, 19___
NationsBank, N.A.
101 North Tryon Street
Charlotte, North Carolina 28255
Attention:_______________________________
The Chase Manhattan Bank
270 Park Avenue
36th Floor
New York, New York 10017
Attention:_______________________________
or
The Bank of New York
One Wall Street
17th Floor
New York, New York 10286
Attention:_______________________________
Re: Confirmation of Swing Loan Request under the Revolving Credit Agreement
dated as of July ___, 1998
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of July
__, 1998 (the "Credit Agreement") among Alliance Capital Management L.P.,
NationsBank, N.A., individually and as administrative agent, The Chase Manhattan
Bank, individually and as syndication agent, The Bank of New York, individually
and as documentation agent, the Co-Agents, and certain other 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 2.12 of the Credit Agreement, we hereby confirm that a
telephonic request for a Swing Loan in the principal amount of $___________ to
be made on
<PAGE>
____________ ___, 199__ was made by us on ______________, 199__. We understand
that this request was irrevocable and binding on us and obligated us to accept
the requested Swing Loan on such date.
We hereby certify that (a) the aggregate outstanding principal amount of
the Swing Loans on the date of the request was $_______________, (b) the
aggregate principal amount of the Swing Loans to be outstanding on the Drawdown
Date for the Swing 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 Swing 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 as described above that are set forth in Section 11 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:_______________________________
-2-
<PAGE>
Exhibit I to the
Credit Agreement
[Date]
TO: NationsBank, N.A.(the "Administrative Agent")
FROM: Alliance Capital Management L.P. (the "Borrower")
RE: Revolving Credit Agreement (the "Credit Agreement") dated as of July
20, 1998 among Alliance Capital Management L.P., NationsBank, N.A.,
individually and as administrative agent, The Chase Manhattan Bank,
individually and as syndication agent, The Bank of New York,
individually and as documentation agent, the Co-Agents identified
therein, and certain other 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 2.13
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 11 of the Credit Agreement have been duly satisfied
or waived.
- ----------
*/ 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.
<PAGE>
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:___________________________
2
<PAGE>
Exhibit J 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 2.13 of the Revolving Credit Agreement (the "Credit
Agreement") dated as of July 20, 1998 among Alliance Capital Management, L.P.,
NationsBank, N.A., individually and as administrative agent, The Chase Manhattan
Bank, individually and as syndication agent, The Bank of New York, individually
and as documentation agent, the Co-Agents identified therein, and certain 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.**/] (Charlotte, North Carolina) on [date***/].
Capitalized terms used herein shall have the meanings assigned thereto in
the Credit Agreement.
NATIONSBANK, N.A.
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.
<PAGE>
Exhibit K to the
Credit Agreement
NationsBank, N.A.
101 North Tryon Street
Charlotte, North Carolina 28255
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:
1. Quoting Lender:___________________________________________________________
2. Person to contact at Quoting Lender:______________________________________
3. Proposed Date of Loan: _________________________________________________*/
4. 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 July 20, 1998 among Alliance Capital
Management L.P., NationsBank, N.A., individually and as administrative agent,
The Chase Manhattan Bank, individually and as syndication agent, The Bank of New
York, individually and as documentation agent, the Co-Agents referenced therein,
and the Banks referred to therein.
- ----------
*/ As specified in the related Invitation.
**/ For a Eurodollar Auction, the margin above or below the Eurodollar Rate.
<PAGE>
Exhibit L to the
Credit Agreement
COMPETITIVE BID RATE NOTE
July 20, 1998
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
July 20, 1998 (as amended and in effect from time to time, the "Credit
Agreement"), among the Borrower, NationsBank, N.A., individually and as
administrative agent, The Chase Manhattan Bank, individually and as syndication
agent, The Bank of New York, individually and as documentation agent, the
Co-Agents identified therein, and the Banks listed on Schedule 1 thereto:
(a) the principal amount of FOUR HUNDRED TWENTY FIVE MILLION AND
NO/100 DOLLARS ($425,000,000) 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.
The Borrower has the right in certain circumstances and the obligation
under certain
<PAGE>
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 19 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.
-2-
<PAGE>
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:______________________________
<PAGE>
GRID FOR COMPETITIVE BID RATE LOANS
<TABLE>
<CAPTION>
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made by:
---- ------- -------------- ---------- --------
<S> <C> <C> <C> <C>
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
---/---/-- $------------ $------------ $------------ -------------
</TABLE>
-4-
<PAGE>
Exhibit M to
Credit Agreement
[ALLIANCE CAPITAL MANAGEMENT L.P. LETTERHEAD]
NationsBank, N.A.
101 North Tryon Street
Charlotte, North Carolina 28255
Attention: _______________________
Each-of the Co-Agents and the Banks as defined in the
Credit Agreement referred to below
Attention: _______________________
Re: Compliance Certificate under Revolving Credit Agreement dated as of July
20, 1998
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of July
20, 1998 (the "Credit Agreement") among Alliance Capital Management L.P.,
NationsBank, N.A., individually and as administrative agent, The Chase Manhattan
Bank, individually and as syndication agent, The Bank of New York, individually
and as documentation agent, the Co-Agents identified therein, and certain other
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 7.4(c) of the Credit
Agreement with respect to compliance with the financial covenants as set forth
in Section 9 of the Credit Agreement. This certificate has been duly executed by
the principal financial officer, treasurer or general counsel of the Borrower.
1. 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 9 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 reconciliations
to reflect changes, if any, in GAAP since December 31, 1997.
2. 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 financial statements of the
Borrower to the extent they differ as the result of changes in GAAP since
December 31, 1997.]
<PAGE>
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:_________________________________
-2-
<PAGE>
Exhibit N to
Credit Agreement
ASSIGNMENT AND ACCEPTANCE
Dated as of _________________, 19__/20__
Reference is made to the Revolving Credit Agreement dated as of July 20,
1998 (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"), NationsBank, N.A., individually and as administrative agent, The
Chase Manhattan Bank, individually and as syndication agent, The Bank of New
York, individually and as documentation agent, the Co-Agents identified therein,
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:
1. Subject to the terms and conditions of this Assignment and Acceptance
and the applicable terms and provisions of the Credit Agreement, including
Section 18 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).
2. 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 ________%,
the aggregate outstanding principal balance of its Loans equals $__________, the
aggregate Maximum Drawing Amount of all outstanding Letters of Credit equals
$________, and the aggregate Unpaid Reimbursement Obligations 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
<PAGE>
its obligations under the Credit Agreement or any of the other Loan 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 [Amount of
the Order of: Amount of Note Bid Rate Note Swing Loan Note
Assignor $____________ $____________ $____________
Assignee $____________ $____________ $____________]
3. 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 7.4 (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, the Co-Agents 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 and the Co-Agents
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 and the Co-Agents 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.
4. 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.
5. 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, with respect to that portion of its
interest under the Credit Agreement assigned hereunder,
-2-
<PAGE>
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 5.6, 5.7, 5.9, 15 and 16 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).
6. 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.
7. 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).
8. This Assignment and Acceptance may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
-3-
<PAGE>
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:_______________________________
NATIONSBANK, N.A.
as Administrative Agent
By:__________________________________
Title:_______________________________
-4-
<PAGE>
Exhibit O to the
Credit Agreement
SWING LOAN NOTE
July 20, 1998
FOR VALUE RECEIVED, the undersigned ALLIANCE CAPITAL MANAGEMENT L.P., a
Delaware limited partnership (the "Borrower"), hereby promises to pay to the
order of [name of Co-Agent] (the "Co-Agent") at the Co-Agent's Head Office as
such term is defined in the Revolving Credit Agreement dated as of July 20, 1998
(as amended and in effect from time to time, the "Credit Agreement"), among the
Borrower, NationsBank, N.A., individually and as administrative agent, The Chase
Manhattan Bank, individually and as syndication agent, The Bank of New York,
individually and as documentation agent, the Co-Agents referenced therein, and
the Banks referred to therein.
(a) the principal amount of _____ DOLLARS ($_____) or, if less, the
aggregate unpaid principal amount of Swing Loans advanced by the Co-Agent
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
Swing 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 Co-Agent 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 Co-Agent 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 Co-Agent to make or cause to be made, at
or about the time of the Drawdown Date of any Swing Loan on, 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 continuation of such grid, or any
other similar record, including computer records, reflecting (as the case may
be) the making of such Swing Loan or receipt of such payment. The outstanding
amount of the Swing 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 Co-Agent with respect to any Swing Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Co-Agent, 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.
<PAGE>
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 Co-Agent in exercising any right
hereunder shall operate as a waiver of such right or of any other rights of the
Co-Agent, 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 19 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.
-2-
<PAGE>
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:
<PAGE>
GRID FOR SWING LOANS
<TABLE>
<CAPTION>
Amount of Balance of
Principal Paid Principal Notation Made
Date Amount of Loan or Prepaid Unpaid by:
<S> <C> <C> <C> <C>
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
--/--/- $---------- $---------- $----------- ---------
</TABLE>
-4-
<PAGE>
Exhibit P
<TABLE>
<CAPTION>
Application and Agreement
NationsBank(R) for Standby Letter of Credit
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
Letter of Credit Department Letter of Credit No. Date
Please issue an Irrevocable Letter of Credit in (For NationsBank Use Only)
favor of the Beneficiary substantially as shown
below and deliver the Credit by -
|_| Regular Mail |_| Courier |_| Teletransmission
- -----------------------------------------------------------------------------------------------------
Applicant (full name and mailing address) Beneficiary (full name and mailing address; if
courier requested full street
address must be provided)
For Account of (if different from Applicant)
- -----------------------------------------------------------------------------------------------------
Advising Bank (if left blank, NationsBank will Amount (in figures and in words)
choose as appropriate)
Currency (if left blank, U [ILLEGIBLE]
----------------------------------------------
Expiry Date (drafts must be presented to
drawee for negotiation)
[when
negotiable] on or before):
- -----------------------------------------------------------------------------------------------------
</TABLE>
Available by draft(s) at SIGHT drawn, at the option of NationsBank, on
NationsBank or a correspondent of NationsBank when accompanied by the following
document(s): (Please check the documents and fill in the blanks below as
applicable)
|_| A written statement purportedly signed by (if left blank the Beneficiary)
with the following wording:
Quote
Close Quote
|_| Other
<PAGE>
|_| Issue Credit as per attached (exhibit is an integral part of the
exhibit marked exhibit Agreement).
<PAGE>
NOTE: If the Credit provides for automatic renewal without amendment, Applicant
agrees that it will notify NationsBank in writing at least sixty (60) days prior
to the last day specified in the Credit by which NationsBank must give notice of
nonrenewal as to whether or not it wishes the Credit to be renewed. Any decision
to renew or not renew the Credit shall be in the sole discretion of NationsBank.
Applicant hereby acknowledges that in the event NationsBank notifies the
Beneficiary of the Credit that it has elected not to renew the Credit, the
Credit may be drawn on if permitted by the terms of the Credit and further
acknowledges and agrees that Applicant shall have no claim or cause of action
against NationsBank or defense against payment under the Agreement for renewal
or non-renewal by NationsBank of the Credit in the exercise of the discretion of
NationsBank as set forth above.
Multiple Drawings: |_| Prohibited (permitted if left blank)
Special Instructions to NationsBank Not to be included in the Credit (if any):
The terms and conditions set out above and below, and any attached exhibits,
supplements or schedules referred to in this Application, have been reviewed by
Applicant, and by Applicant's signature below and for good and valuable
consideration, Applicant agrees to the same and to be obligated and liable under
the Agreement. In the event this Application requests an Account Party different
from Applicant, then such party may sign below as Co-Applicant, but the failure
of such Account Party to become a Co-Applicant shall not affect the obligations
of Applicant under the Agreement. Completion and submittal of this Application
by Applicant does not obligate NationsBank to enter into the Agreement or issue
the requested Credit.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Name of Company, or signature if Name of Company, or signature if
Applicant is an individual Co-Applicant is an
individual
<PAGE>
By By
Authorized Signature/Title Authorized Signature/Title
Address Address
Telephone) (Fax) Telephone
Fax
Date Date
<TABLE>
<CAPTION>
Bank Use Only
=============================================================================================================
<S> <C> <C>
Approving Bank Officer - Signature Approving Bank Officer - Printed Officer Number
- -------------------------------------------------------------------------------------------------------------
Officer - Title Officer - Interoffice Address Cost Center Number
- -------------------------------------------------------------------------------------------------------------
Officer Phone Number (area code and Purpose Code Officer Fax Number (area code
number)
=============================================================================================================
</TABLE>
<PAGE>
1. Definitions.
In the Agreement:
(1) "Agreement" means the Application, the terms and conditions set out above
and below, and the Credit, together with any and all modifications, amendments
and extensions of any thereof.
(2) "Applicable Interest Rate" means, unless otherwise defined in and governed
by a separate agreement between NationsBank and Applicant, the lesser of the
maximum lawful rate permitted by applicable law or a per annum rate (calculated
on the basis of a 360 day year) equal to the sum of the prime rate of interest
established by NationsBank from time to time (which is not necessarily the
lowest or best rate of interest charged by NationsBank to any of its customers)
plus three percent.
(3) "Applicant" means, singularly or collectively, and, if more than one,
jointly and severally, each person or entity who has executed the Application as
Applicant or Co-Applicant.
(4) "Application" means the foregoing application of Applicant relating to the
Credit as such application may be amended or modified from time to time in
accordance herewith.
(5) "Credit" or "Letter of Credit" means the letter of credit issued pursuant to
the Application as it may be amended or modified from time to time in accordance
herewith.
(6) "instrument" means the Credit or any draft, receipt, acceptance or written
demand (to include teletransmissions) for payment under the Credit.
(7) "NationsBank" means the banking subsidiary of NationsBank Corporation that
issues the Credit in the sole discretion of NationsBank.
(8) "property" means goods and any and all documents related thereto,
securities, funds, choses in action, and any and all other forms of property,
whether real, personal or mixed and any right or interest therein.
2. Promise to Pay.
(a) As to instruments drawn under or purporting to be drawn under any Credit,
which are payable in United States currency: (i) in the case of each sight
instrument, Applicant will reimburse NationsBank, at the address specified by
NationsBank to Applicant, on demand, in United States currency, the amount paid
thereon, or, if so demanded by NationsBank, will pay to NationsBank in advance
the amount required to pay the same, and (ii) in the case of each time
instrument, Applicant will pay to NationsBank, at the address specified by
NationsBank to Applicant, in United States currency, the amount thereof, on
demand but in any event not later than one business day prior to maturity of
such time instrument at the place specified by the applicable Credit for
payment.
(b) As to instruments drawn under or purporting to be drawn under any Credit,
which are payable in currency other than United States currency: (i) in the case
of each sight instrument, Applicant will reimburse NationsBank, at the address
specified by NationsBank to Applicant, on demand, in United States currency, the
equivalent of the amount paid under the instrument together with all taxes,
levies, imposts, duties, charges and fees of any nature imposed by any
government or other taxing authority including interest and penalties in
connection therewith (collectively "F/X Taxes") at the selling rate of exchange
at NationsBank at the time of payment under the instrument for teletransmission
to the place of payment in the currency in which such instrument is payable, or,
if so demanded by NationsBank, will pay to NationsBank, in advance, in the
United States currency the equivalent of the amount required to pay the same;
and (ii) in the case of each time instrument, Applicant will pay to NationsBank,
at the address specified by NationsBank to Applicant, on demand, but in any
event sufficiently in advance of maturity of such time instrument to enable
NationsBank to arrange for cover to reach the place of payment not later than
three business days prior to maturity, the equivalent of the time instrument
together with all F/X Taxes in United States currency at the selling rate of
exchange at NationsBank at the time of provision of cover for teletransmission
to the place of payment in the currency in which such instrument is payable. If
for any cause whatsoever there exists at the time in question no rate of
exchange generally current for effecting transfers as above described, or such
currency is not available for purchase by NationsBank, Applicant agrees to pay
NationsBank on demand, at the election of NationsBank, (i) an amount in United
States currency equivalent to the actual cost to NationsBank of settlement of
the obligation of NationsBank to the holder of the instrument or other person
together with all F/X Taxes, however and whenever such settlement shall be made
by NationsBank, or (ii) an amount in United States currency equivalent to the
estimated cost to NationsBank, as projected by NationsBank, of the future
settlement of the obligation of NationsBank to the holder of the instrument or
other person, together with all F/X Taxes,
<PAGE>
provided that upon the actual settlement of the obligation of NationsBank,
however and whenever occurring, NationsBank shall reimburse Applicant or
Applicant shall pay to NationsBank, as the case may be, an amount in United
States currency equal to the difference between the initial estimated payment by
Applicant to NationsBank and the actual settlement amount paid by NationsBank.
(c) NationsBank may accept or pay any instrument presented to it, regardless of
when drawn and whether or not negotiated, if such instrument, the other required
documents and any transmittal advice are dated on or before the expiration date
of the applicable Credit, and NationsBank may honor, as complying with the terms
of any Credit and of the Agreement, any instruments or other documents otherwise
in order signed or issued by any person who is, or is in good faith, without
independent investigation or inquiry, believed by NationsBank to be, an
administrator, executor, trustee in bankruptcy, debtor in possession,
conservator, assignee for the benefit of creditors, liquidator, receiver or
other legal representative or successor by operation of law of the party
authorized under such Credit to draw or issue such instruments or other
documents.
3. Promise to Pay Interest and Fees.
(a) Applicant will pay NationsBank, on demand: (i) commissions at the rate set
forth in a separate written agreement between NationsBank and Applicant or, in
the absence of a separate agreement, at such rate as NationsBank may determine
to be proper. (ii) unless actually paid or reimbursed to NationsBank by the
Beneficiary or another person or entity, all charges and expenses paid or
incurred by NationsBank in connection with each Credit including, without
limitation, reasonable attorneys' fees for the enforcement of any rights
hereunder and any charges of other banks not paid for by the Beneficiary or
another party, and (iii) interest on any amounts due by Applicant to NationsBank
hereunder from the date due to the date of payment at the Applicable Interest
Rate.
(b) No provision of the Agreement shall require the payment or permit the
collection of interest in excess of the maximum rate permitted by applicable
law.
<PAGE>
4. Clean Advances.
If the Application requests inclusion in the Credit of any provision for clean
advances to the Beneficiary, NationsBank may place in the Credit such a
provision in that respect as NationsBank may deem appropriate under which any
bank entitled to negotiate drafts under the Credit, acting in its discretion in
each instance and upon the request and receipt in writing from the Beneficiary,
may make one or more clean advances at any time on or prior to the date by which
drafts are to be negotiated under the Credit. The aggregate of such advances
shall in no event be more than the amount specified in the Application for clean
advances, and whether or not specified therein in no event shall any such
advance exceed the amount remaining available under the Credit at the time of
the advance. While it is expected by Applicant that each such advance will be
repaid by the Beneficiary to the bank that made the advance from the proceeds of
any drafts drawn under the Credit, should any such advance not be thus repaid,
Applicant will on demand pay NationsBank the amounts thereof as if such advances
were evidenced by drafts drawn under the Credit. It is understood that neither
NationsBank nor any bank which may make such advances shall be obligated to
inquire into the use that may be made thereof by the Beneficiary of the Credit
and that NationsBank and each such bank shall be without liability for any
wrongful use that may be made by the Beneficiary of the Credit of any funds so
advanced.
5. Uniform Customs and Practice.
The Uniform Customs and Practice for Documentary Credits, as published as of the
date of issue of the Credit by the International Chamber of Commerce (the "UCP")
shall in all respects be deemed a part hereof as fully as if incorporated herein
and shall apply to the Credit. Unless expressly provided otherwise in the
Credit, in the event any provision of the UCP is or is construed to vary from or
be in conflict with the laws of the United States of America, any State thereof,
as from time to time amended and in force, the UCP shall prevail, provided,
however, that this Section shall not be interpreted to require NationsBank to
take any action or fail to take action if such would cause NationsBank to
violate applicable law or regulation.
6. Licenses and Compliance.
Applicant will procure promptly any necessary licenses for the services
performed or the import, export or shipping of property shipped under or
pursuant to or in connection with the Credit, and will comply with all foreign
and domestic laws, rules and regulations now or hereafter applicable to the
transaction related to the Credit or applicable to the execution, delivery and
performance by Applicant of the Agreement. Applicant further agrees to furnish
to NationsBank such evidence in respect of the above as NationsBank may at any
time require.
7. Insurance.
Applicant shall keep such property as may be the subject of the Credit
adequately covered by insurance in amounts, against risks and with companies
satisfactory to NationsBank and shall, upon request, provide NationsBank
evidence of such coverage. Applicant shall at the request of NationsBank have
NationsBank named as loss payee of any such policy, as its interests may appear.
Applicant hereby irrevocably grants its power of attorney to NationsBank and any
of its officers, with the power of substitution, to endorse any check in the
name of Applicant received in payment of any loss or adjustment covered by such
insurance.
8. Default
(a) In the event of the happening of any one or more the following events (any
such event being hereinafter called an "Event of Default"), namely: (i) the
nonpayment of any of the obligations of Applicant to NationsBank (under the
Agreement or otherwise), or to any other person or entity, now or hereafter
existing, when due, or (ii) the failure of Applicant to perform or observe any
other term or covenant of the Agreement, or (iii) the dissolution or termination
of existence of Applicant, or (iv) the institution by or against Applicant of
any proceeding seeking to adjudicate Applicant a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of Applicant or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian, or other similar official for Applicant or for any
substantial part of its property, or (v) any seizure, vesting or intervention by
or under authority of a government by which the management of Applicant is
displaced or its authority in the control of its business is curtailed, or (vi)
the attachment of or restraint as to any substantial funds or other property
which may be in, or come into, the possession or control of NationsBank, or of
any third party acting on behalf of NationsBank, for the account or benefit of
Applicant, or the issuance of any order of court or other legal process against
the same, or (vii) the occurrence of any of the above events with respect to any
person or entity which has guaranteed, provided a comfort letter, support
agreement, or similar document with respect to any obligations of Applicant to
NationsBank (under the Agreement or otherwise), or (viii) any representation,
warranty, certification or statement made or
<PAGE>
submitted by Applicant to NationsBank shall be false, misleading or incorrect in
any material respect when made or deemed made; or (ix) any person or entity
which has guaranteed, or provided a comfort letter, support agreement or similar
document with respect to, any obligations of Applicant to NationsBank (under the
Agreement or otherwise) shall default under the terms of, or deny the validity,
binding effect or enforceability of, such guarantee, comfort letter, support
agreement or similar document; then, or at any time after the happening of such
event, the amount of the Credit, as well as any and all other obligations of
Applicant under the Agreement, shall, at the option of NationsBank, and whether
or not otherwise then due and payable, become due and payable immediately
without demand upon or notice to Applicant.
(b) Upon the occurrence and during the continuance of any Event of Default,
NationsBank is hereby authorized to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by NationsBank or any subsidiary or
affiliate of NationsBank to or for the credit or the account of Applicant
against any and all of Applicant's obligations to NationsBank, under the
Agreement, whether or not NationsBank shall have made any demand under the
Agreement and although such deposits, indebtedness or obligations may be
unmatured or contingent. The rights of NationsBank under this Section 8(b) are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) which NationsBank may have.
9. Security.
(a) As collateral for the payment of any and all obligations of Applicant to
NationsBank under each Credit, Applicant hereby grants to NationsBank a security
interest in (i) any and all documents of title, policies or certificates of
insurance and other documents accompanying or related to instruments drawn under
such Credit, and any and all other property shipped under or in connection with
such Credit or in any way related thereto or to any of the instruments drawn
thereunder (whether or not such documents or property are released to or upon
the order of Applicant in trust or otherwise) and (ii) any and all proceeds and
products of the foregoing. Also to secure the payment of any and all obligations
of Applicant under the Agreement, NationsBank shall be subrogated to the rights
of Applicant in respect of any transaction to which such Credit relates. Insofar
as any property which may be held by NationsBank, or for the account of
NationsBank, as collateral hereunder may be released to or upon the order of
Applicant, Applicant hereby acknowledges that such delivery of property is in
trust pending satisfaction of Applicant's obligations to NationsBank under the
Agreement thereby, and hereby agrees to execute and/or file such receipts,
agreements, forms or other documents as NationsBank may request to further
evidence the interests of NationsBank in such property, it being understood that
the rights of NationsBank as specified therein shall be in furtherance of and in
addition to (but not in limitation of) the rights of NationsBank hereunder. If
at any time and from time to time NationsBank in good faith deems itself
insecure and requires collateral (or additional collateral), Applicant will, on
demand, assign and deliver to NationsBank as security for any and all
obligations under each Credit, collateral of a type and value satisfactory to
NationsBank or make such cash payment as NationsBank may require. NationsBank is
hereby authorized, at its option at any time and with or without notice to
Applicant to transfer to or register in its name or the name of any nominees of
NationsBank all or any part of the property subject to any of the security
interests granted under or contemplated by the Agreement. NationsBank is also
authorized, at its option, to file financing statements without the signature of
Applicant with respect to all or any part of such property. Applicant will pay
the cost of any such filing and, upon the request of NationsBank, sign such
instruments, documents or other papers, and take such other action, as
NationsBank may reasonably require to perfect such security interests.
(b) If any Event of Default shall have occurred and be continuing. NationsBank
may exercise in respect of the property subject to any of the security interests
granted under or contemplated by the Agreement all the rights and remedies of a
secured party on default under the applicable Uniform Commercial Code or any
other applicable law, and also may, without notice except as specified below,
sell such property or any part thereof in one or more parcels at public or
private sale, at any NationsBank office or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as NationsBank may deem commercially
reasonable. To the extent notice of sale of such property shall be required by
law, reasonable notification shall be satisfied by written notice mailed or
delivered to Applicant at the address specified above at least five business
days prior to the date of public sale or prior to the date after which private
sale is to be made. Applicant will pay to NationsBank on demand all costs and
expenses (including, without limitation, reasonable attorneys' fees and legal
expenses) related or incidental to the custody, preservation or sale of, or
collection from, or other realization upon, any of such property or related or
incidental to the establishment, preservation or enforcement of the rights of
NationsBank in respect of any such property, in the event of sale of, collection
from, or other realization upon all or any part of such property, NationsBank
may, in its discretion, hold the proceeds thereof as additional collateral
hereunder or then or at any time thereafter apply the proceeds thereof to the
payment of such of the costs and expenses referred to above and such of the
obligations of Applicant under the Agreement, whether or not then due, as
NationsBank may determine in its discretion, any surplus to be paid over to
Applicant or to whomever may be lawfully
<PAGE>
entitled to receive such surplus.
10. Indemnity.
Applicant will indemnify and hold NationsBank (such term to include for purposes
of this paragraph affiliates of NationsBank and its and its affiliates'
officers, directors, employees and agents) harmless from and against (i) all
loss or damage arising out of the issuance by NationsBank of, or any other
action taken by any such indemnified party in connection with, the Credit other
than loss or damage resulting from the gross negligence or willful misconduct of
the party seeking indemnification, and (ii) all costs and expenses (including
reasonable attorneys' fees and legal expenses) of all claims or legal
proceedings arising out of the issuance by NationsBank of the Credit or incident
to the collection of amounts owed by Applicant hereunder or the enforcement of
the rights of NationsBank hereunder, including, without limitation, legal
proceedings related to any court order, injunction, or other process or decree
restraining or seeking to restrain NationsBank from paying any amount under the
Credit. Additionally, Applicant will indemnify and hold NationsBank harmless
from and against all claims, losses, damages, suits, costs or expenses arising
out of Applicant's failure to timely procure licenses or comply with applicable
laws, regulations or rules, or any other conduct or failure of Applicant
relating to or affecting the Credit.
11. Effect of Waivers.
No delay, extension of time, renewal, compromise or other indulgence which may
occur or be granted by NationsBank shall impair the rights or powers of
NationsBank hereunder. NationsBank shall not be deemed to have waived any of its
rights hereunder, unless NationsBank or its authorized agent shall have signed
such waiver in writing.
12. Agency.
If Applicant is a financial institution (the "Financial Institution") and is
requesting the issuance of the Credit for its customer (the "Customer"), the
Financial Institution hereby irrevocably appoints NationsBank as its agent and
attorney-in-fact to issue the Credit in accordance with, and subject to, the
Agreement. The Financial Institution shall pay to NationsBank all amounts owed
by the Customer under the Agreement when due, whether or not the Financial
Institution has received payment from the Customer and shall pay to NationsBank
its fees and expenses according to its fee schedule from time to time in effect.
The Financial Institution hereby grants to NationsBank a security interest in
all of the property in which the Customer has heretofore granted or may
hereafter grant to the Financial Institution a security interest to secure the
obligations of the Customer under the Agreement.
13. Miscellaneous.
(a) Any notice from NationsBank to Applicant shall be deemed given when mailed,
postage paid, or when delivered to a courier, fee paid by shipper, addressed to
Applicant at the last business address furnished by Applicant to NationsBank, or
when confirmed by electronic confirmation to NationsBank as having been
delivered via facsimile or other teletransmission. Any notice from Applicant to
NationsBank shall be sent to the address of NationsBank specified by NationsBank
to Applicant and shall be effective upon receipt by NationsBank.
(b) Each provision of the Agreement shall be interpreted in such manner as to be
effective and valid under applicable law but if any provision of the Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of the
Agreement.
(c) If any law, treaty, regulation or the interpretation thereof by any court or
administrative or governmental authority shall impose, modify or deem applicable
any capital, reserve, insurance premium or similar requirement against letters
of credit issued by NationsBank and the result thereof shall be to increase the
cost to NationsBank of making any payment or issuing or maintaining the Credit
or to reduce the yield to NationsBank in connection with the Credit or the
Agreement then, on demand, Applicant will pay to NationsBank, from time to time,
such additional amounts as NationsBank may in good faith determine to be
necessary to compensate NationsBank for such increased cost or reduced yield.
(d) Any and all payments made to NationsBank hereunder shall be made free and
clear of and without deduction for any present or future taxes, levies, imposts,
deductions, charges, or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on net income and all income and franchise taxes of the
United States and any political subdivisions thereof (such nonexcluded taxes
being herein called "Taxes"). If Applicant shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder, (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 13(d)), NationsBank shall receive an
<PAGE>
amount equal to the sum NationsBank would have received had no such deductions
been made, (ii) Applicant shall make such deductions, and (iii) Applicant shall
pay the full amount deducted to the relevant authority in accordance with
applicable law. Applicant will indemnify NationsBank for the full amount of
Taxes (including, without limitation, any Taxes imposed by any jurisdiction on
amounts payable under this Section 13(d)) paid by NationsBank and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date NationsBank makes
written demand therefor. Within 30 days after the date of any payment of Taxes.
Applicant will furnish to NationsBank the original or a certified copy of a
receipt evidencing payment thereof.
(e) The Agreement shall be binding upon Applicant, its successors and assigns,
and shall inure to the benefit of NationsBank, its successors, transferees and
assigns; provided that any assignment by Applicant of any of its rights or
obligations under the Agreement without the prior written consent of NationsBank
shall be void.
(f) Applicant hereby authorizes NationsBank, in the discretion of NationsBank,
to set forth the terms of the Application in the Credit in such language as
NationsBank deems appropriate, with variations not materially inconsistent with
the Application.
(g) Any action, inaction or omission taken or suffered by NationsBank or by any
of its correspondents under or in connection with the Credit or any related
instruments, services or property, if in good faith and in conformity with
foreign or domestic laws, regulations or customs applicable thereto, shall be
binding upon Applicant and shall not place NationsBank or any of its
correspondents under any resulting liability to Applicant. Without limiting the
generality of the foregoing, NationsBank and its correspondents may act in
reliance upon any oral, telephonic, telegraphic, facsimile or other
teletransmission, or written request or notice believed in good faith to have
been authorized, whether or not given or signed by an authorized person.
(h) In the event of any change or modification, with the consent of Applicant,
which consent may be given by any means of submission acceptable to NationsBank,
including, without limitation, computer, facsimile or telex, relative to the
Credit or any instrument called for thereunder, including any waiver made or in
good faith believed by NationsBank to have been made by Applicant of any term
hereof or the noncompliance of any such instruments with the terms of the
Credit, the Agreement shall be binding upon Applicant with regard to the Credit
as so changed or modified, and to any action taken by NationsBank or any of its
correspondents relative thereto. No term or provision of the Agreement can be
changed orally, and no executory agreement shall be effective to modify or to
discharge the Agreement unless such executory agreement is in writing and signed
by NationsBank.
(i) NationsBank assumes no liability or responsibility for the consequences
arising out of delay and/or loss in transit of any message, letter or
documentation, or for delay, mutilation or other error arising in the
transmission of any teletransmission.
(j) If Applicant includes any language describing events or conditions in any
Application that would not be possible for NationsBank to verify from the
documents required to be presented under the Credit relating to such
Application. Applicant acknowledges and agrees that NationsBank has no
obligation to verify compliance with such requirements.
14. Jurisdiction and Waiver.
Applicant hereby irrevocably submits to the non-exclusive jurisdiction of any
State or Federal court sitting in the city, county, or district in which the
principal office of NationsBank is located over any action or proceeding arising
out of or relating to the Agreement, and Applicant hereby irrevocably agrees
that all claims in respect to such action or proceeding may be heard and
determined in such State or Federal court. APPLICANT HEREBY IRREVOCABLY WAIVES
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING AND THE LACK OF PERSONAL
JURISDICTION. TO THE FULLEST EXTENT IT MAY LAWFULLY AND EFFECTIVELY DO SO, EACH
OF APPLICANT AND NATIONSBANK WAIVES THE RIGHT TO TRIAL BY JURY in any such
action or proceeding. Applicant irrevocably consents to the service of any and
all process in any such action or proceeding by the mailing of copies of such
process to Applicant at the last business address furnished by Applicant to
NationsBank. Applicant agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing, however,
in this Section 14 shall affect the right of NationsBank to serve legal process
in any other manner permitted by law or affect the right of NationsBank to bring
any action or proceeding against Applicant or its property in the courts of any
other jurisdiction. Moreover, to the extent that Applicant has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or
<PAGE>
otherwise) with respect to itself or its property. Applicant hereby irrevocably
waives such immunity in respect of its obligations under the Agreement.
15. Automatic Payment.
|_| Applicant has elected to authorize NationsBank to effect payment of sums due
under this Agreement by means of debiting Applicant's account number
____________________. This authorization shall not affect the obligation of
Applicant to pay such sums when due, without notice, if there are insufficient
funds in such account to make such payment in full when due, or if NationsBank
fails to debit the account.
<PAGE>
Exhibit P
THE CHASE MANHATTAN BANK
[LOGO] CHASE
Commercial Letter of Credit
Application and
Security Agreement
WHEN TRANSMITTING THIS APPLICATION BY FACSIMILE ALL PAGES MUST BE TRANSMITTED
If Delivered by Hand - Deliver to: If Mailed - Address as Follows:
The Chase Manhattan Bank The Chase Manhattan Bank
Global Trades Operations Global Trades Operations
55 Water Street, 17th floor P.O. Box 44
New York, NY 10041-0199 New York, NY 10008-0044
Gentleman:
Please issue an IRREVOCABLE DOCUMENTARY letter of credit and transmit it by:
[_] Teletransmission [_] Mail [_] Brief Teletransmission, full
[_] Courier details by mail
- --------------------------------------------------------------------------------
Applicant
- --------------------------------------------------------------------------------
Advising Bank (if blank The Chase Manhattan Bank or affiliate or correspondent
in the domicile of the beneficiary)
- --------------------------------------------------------------------------------
Partial Shipment Transhipment
(if blank allowed) (if blank allowed)
[_] Allowed [_] Allowed
[_] Not Allowed [_] Not Allowed
- --------------------------------------------------------------------------------
Shipment:
From:
For Transportation to:
Not Later Than:
- --------------------------------------------------------------------------------
The following documents are required: complete set unless otherwise stated.
[_] Commercial Invoice and __________ copies.
[_] Custom Invoice and ______________ copies.
[_] Visaed Customs Invoice and ________ copies.
TRANSPORT DOCUMENTS:
[_] Full Set of Marina/Ocean Bill of Lading covering a port to port shipment
consigned to the order of The Chase Manhattan Bank marked notify applicant
indicating the name of the carrier, and indicating the goods have been
loaded on board or shipped on a named vessel.
[_] Full Set of Multimodal Transport document consigned to the order of The
Chase Manhattan Bank marked notify applicant indicating the name of the
carrier or multimodal transport operator, and indicating that the goods
have been dispatched, taken in charge or loaded on board.
[_] Air Waybill consigned to The Chase Manhattan Bank marked notify applicant
indicating the name of the carrier.
[_] If Consignee other than The Chase Manhattan Bank _________________.
[_] If notify party other than Applicant ______________________________.
The Transport Document must be marked
[_] Freight Collect
[_] Freight Prepaid
No. Date
- --------------------------------------------------------------------------------
Expiry date and Place of Expiry:
Expiry date: ___________________ Place of Expiry: _______________
- --------------------------------------------------------------------------------
Beneficiary
- --------------------------------------------------------------------------------
Amount in figures and words:
- --------------------------------------------------------------------------------
Unless the undersigned or The Chase Manhattan Bank nominates a bank which
is authorized to pay, or to accept or to negotiate, the letter of credit
will be freely negotiable. The Chase Manhattan Bank may nominate such a
bank in its sole discretion.
If the letter of credit is freely negotiable, it will be considered to be
freely negotiable by any bank anywhere unless the place of expiry is
indicated. (The Chase Manhattan Bank in its sole discretion, may specify
that the letter of credit will expire in the country of the beneficiary.)
- --------------------------------------------------------------------------------
Credit available:
[_] by payment at sight
[_] by deferred payment at: _______________________
[_] by acceptance of drafts at: _____________________
[_] by negotiation
against the documents detailed herein and Beneficiary's draft(s) drawn on
The Chase Manhattan Bank or The Chase Manhattan Bank's affiliate or
correspondent (at the Chase Manhattan Bank's option) for 100% or
_______________% of invoice.
- --------------------------------------------------------------------------------
[_] Insurance will be covered by us
[_] Full set of Insurance
[_] Policy
[_] Certificate: covering the following risks:
[_] All Risks
[_] War
[_] SR$CC
[_] Other Risks (specify)
___________________________________________________________________________
___________________________________________________________________________
[_] Insurance coverage for ______%. (Unless otherwise specified the minimum
amount of insurance must be for 100% of the C.I.F. or C.I.P. value plus
10%. If the C.I.F. value cannot be determined from the documents on their
face, insurance must be for 110% of the drawing amount or 110% of the gross
invoice amount, whichever is greater.)
[_] Packing List and ____________ copies.
[_] Certificate of Origin and _____________ copies.
[_] Inspection Certificate issued by ________________________. ____ and
purportedly signed by
[_] Letter of Credit is transferable. (The Chase Manhattan Bank is authorized
to include its standard transfer conditions and is authorized to nominate a
Transferring Bank if the Letter of Credit is available for negotiation by
any Bank).
[_] Other Documents: __________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
[_] See attached for further documents or instructions.
Covering: Merchandise described in the Invoice as (Mention Commodity only in
genetic terms omitting details as to grade, quality, etc. Please do not attach
copy of Purchase Order. Reference may be made to it for information only.)
________________________________________________________________________________
________________________________________________________________________________
- --------------------------------------------------------------------------------
Terms: [_] FAS _____ [_] FOB _____ [_] C&F _____ [_] CIF _____ [_] Other _____
Documents must be presented for payment, acceptance, negotiation within
_________ days (unless otherwise specified 21 days will be stipulated) after the
date of issuance of the transport documents but within validity of letter of
credit.
All bank charges other than those of The Chase Manhattan Bank N.Y. are for the
beneficiary's account. Documents are to be forwarded in one dispatch.
Special Conditions: ____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
<PAGE>
IN CONSIDERATION OF THE ISSUANCE BY YOU, THE CHASE MANHATTAN BANK, AT THE
REQUEST OF THE UNDERSIGNED, OF YOUR COMMERCIAL LETTER OF CREDIT (HEREINAFTER
CALLED THE "CREDIT") SUBSTANTIALLY IN ACCORDANCE WITH THE FOREGOING APPLICATION,
THE UNDERSIGNED HEREBY AGREES TO ALL THE TERMS AND CONDITIONS SET FORTH ON THE
FACE AND REVERSE HEREOF, ALL OF WHICH HAVE BEEN READ AND UNDERSTOOD BY THE
UNDERSIGNED. IN ADDITION, THE CUSTOMER OF AN APPLICANT BANK OR COMMERCIAL
FINANCE/FACTORING COMPANY, BY ITS SIGNATURE BELOW, IRREVOCABLE AUTHORIZES YOU TO
DELIVER ALL DOCUMENTS PRESENTED OR OTHERWISE RECEIVED BY YOU UNDER THE TERMS OF
THE CREDIT AND/OR THE UNDERLYING MERCHANDISE TO THE APPLICANT BANK, COMMERICAL
FINACE/FACTORING COMPANY.
- --------------------------------------------------------------------------------
[_] We have previously executed The Chase Manhattan Bank's Continuing Letter of
Credit Agreement and this Application is subject to the terms and conditions
thereof. (If this box is checked, only the cover sheets of this Application
needs to be transmitted to The Chase Manhattan Bank
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C>
APPLICANT/APPLICANT BANK OR
APPLICANT COMMERICAL FINANCE/FACTORING
COMPANY (where applicable)
Name _____________________ Name _________________
Address ____________________ Address ________________
By: _______________________ By: ___________________
Title: ______________________ Title: __________________
(Signature must be on file with the Chase Manhattan Bank) (Signature must be on file with the
Chase Manhattan Bank)
</TABLE>
Our account No. with The Chase Manhattan Bank ________________
- --------------------------------------------------------------------------------
For Bank Use Only
S.V.
039230(8-97)
<PAGE>
1. The Applicant authorizes the Bank to set forth in the Credit the terms
in this Application in such language as the Bank may deem appropriate with such
variations from such terms as the Bank may in its discretion determine are
necessary and are not materially inconsistent with this Application.
2. As to any drawing under the Credit payable in United States currency,
Applicant shall reimburse the Bank at its office noted on the Application (or at
such other office as the Bank may advise) in U.S. currency in immediately
available funds, the amount paid on such drawing, with interest from the date of
payment (at the maximum rate permitted by law) ("Interest"), or, if so demanded
by the Bank to pay to it at said office, in advance, the amount required to pay
such drawing. As to a drawing payable in another currency, reimbursement shall
be the equivalent of the amount paid in U.S. currency at the Bank's then selling
rate for cable transfers to the place of payment together with Interest. If the
Bank has no rate for cable transfers to the place of payment in the currency in
which any such drawing is made, Applicant shall pay the Bank, in U.S. currency
in immediately available funds, an amount which in the Bank's sole judgment
shall be sufficient to meet Applicant's liabilities in respect of the Credit,
which amount may be applied by the Bank at any time as a payment on account of
such liabilities, or, at the Bank's option, held as security therefor; it being
understood, however, that Applicant shall remain liable for any deficiency which
may result if such amount in U.S. legal tender shall prove to be insufficient to
effect full payment or reimbursement to the Bank at the time when a rate of
exchange for such cable transfers shall again be quoted by the Bank.
3. Applicant shall pay the Bank, on demand, its commission, charges and
expenses (including reasonable inside and outside counsel fees, expenses and
charges) incurred in connection with the Credit, and correspondent's charges, if
any.
4. All payments made by the Applicant hereunder shall be made free and
clear of and without deduction for any present or future foreign taxes, levies,
imposts, claims, setoffs, charges, withholdings and liabilities with respect
thereto of any nature or description. The Applicant hereby authorizes the Bank
to charge the Applicant's account(s) maintained with the Bank without notice to
the Applicant for any and all amounts due to the Bank hereunder.
5. Applicant hereby grants the Bank a security interest in and recognizes
and admits the Bank's unqualified right to the possession and disposition of all
property shipped under or in connection with the Credit and in and to all
shipping documents, warehouse receipts, policies or certificates of insurance
and other documents or instruments accompanying or relative to drawings under
the Credit and in and to the proceeds of each and all of the foregoing, all to
be held by the Bank as collateral security for the prompt and unconditional
payment of all obligations and liabilities of the Applicant to the Bank
("Obligations').
6. In order to secure further the payment of the Obligations, the Bank is
hereby given a continuing lien for the amount of all Obligations upon any and
all property of the Applicant in the Bank's (or any of its affiliates',
including without limitation, Chase Securities Inc. ("Affiliates")) actual or
constructive possession or in transit to them or their correspondents or agents
from or for the Applicant and the proceeds thereof, whether for safekeeping,
custody, pledge, transmission, collection, or otherwise or coming into the
Bank's or an Affiliate's possession in any way, or placed in any safe deposit
box leased by the Bank to the Applicant. The Bank is also hereby given a
continuing lien and right of set-off for the amount of the Obligations upon or
with Applicant agrees to accept same as the Bank's agent and to hold same in
trust for the Bank, and to deliver the same to the Bank forthwith in the exact
form received, with the Applicant's endorsement when necessary to be held by the
Bank as Collateral.
7. Applicant will indemnify the Bank from and against all claims, suits,
losses, liabilities, assessments or judgments and other expenses which the Bank
may at any time sustain or incur by reason of, or in consequence of, or arising
out of, issuance of the Credit. It is the intention of the parties that this
Agreement shall be construed and applied to protect and indemnify the Bank and
its officers, agents and employees against all risks involved in the issuance of
the Credit, which are hereby assumed by the Applicant, including, without
limitation, all risks of the acts or omissions, whether rightful or wrongful, of
any present or future de jure or de facto governmental authority or regulatory
authority (all such acts and omission, herein called "Government Acts"). The
Bank shall not be liable for failure to pay a drawing under the Credit resulting
from any Government Acts or any other cause beyond the Bank's control or the
control of the Bank's agents or subagents. The Bank shall be subrogated to all
of the Applicant's rights against the beneficiary of the Credit upon its
accepting drafts drawn under, honoring or paying (as applicable) the Credit, and
in furtherance of the foregoing, the Applicant agrees to execute, deliver and
acknowledge such documents and take such other and further action as the Bank
may deem necessary or desirable to effectuate the assignment of the Applicant's
rights against the beneficiary of the Credit to the Bank.
8. Applicant agrees (a) that the Bank or its correspondents may accept or
pay, as complying with the terms of the Credit, any drafts, claims or other
documents otherwise in order which may be signed or issued by one who purports
to be the administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, legal
representative or any other entity succeeding or purporting to succeed de facto
or de jure to the powers, rights or privileges of any party who is authorized to
draw under the Credit (b) that the Bank has no obligation to dishonor any
drafts, claims or other documents otherwise in order in the absence of an
injunction issued by a court of competent jurisdiction and (c) that in the event
of any extension of the maturity or time for negotiation or presentation of
drafts, claims, acceptances, or documents, increase in the amount of the Credit,
or other modification of the terms or provisions of the Credit at the request or
with the consent of any Applicant, with or without notification to the other
Applicants, if any, this Agreement shall be binding upon all Applicants with
regard to (i) the Credit so extended, increased, or otherwise modified, (ii)
drafts, claims, documents and property covered thereby, and (iii) any action
taken by the Bank or any of its correspondents in accordance with such
extension, increase, or other modification.
9. Bank shall not be responsible for any payment against presentation of
drafts, claims, or documents which do not strictly comply with the terms of the
Credit provided the Bank determines in good faith that such drafts, claims or
documents substantially comply with the terms of the Credit. The Bank shall have
sole discretion to decide whether to pay against drafts, claims or documents
which in the Bank's judgment substantially comply with the terms of the Credit.
10. In case of any purported variation between the Applicant's instruction
and the requirements of the Credit or between documents accepted by the Bank or
its correspondents and the requirements of the Credit for which the Bank is
otherwise responsible, Applicant shall be conclusively deemed to have waived any
right to object to such variation unless the Applicant immediately upon receipt
of a copy of the Credit or such documents or acquisition of knowledge of such
[Missing Text]
<PAGE>
[Missing Text] or coming into the Bank's or an Affiliate's possession in any
way, or placed in any safe deposit box leased by the Bank to the Applicant. The
Bank is also hereby given a continuing lien and right of set-off for the amount
of the Obligations upon or with respect to any and all deposits (general or
special) and credits of the Applicant with the Bank, credits payable by the Bank
to the Applicant, and any and all claims of the Applicant against the Bank at
any time existing; and the Bank is hereby authorized at any time or times,
without prior notice, to apply such deposits or credits, or any part thereof to
the Obligations and in such amount as the Bank may select, even though
contingent and/or unmatured, and whether the collateral security therefore is
deemed adequate or not. (All of the foregoing, together with the property
enumerated in paragraph 5 hereof, as well as any property in which the Bank may
now or hereafter be granted a security interest or which may be deposited with
the Bank or it's agents by the Applicant to secure Obligations are herein
collectively called "Collateral"). If the Applicant, as registered holder of
Collateral, shall become entitled to receive or does receive any stock
certificate, option, or right, whether as an addition to, in substitution of, or
in exchange for Collateral, or otherwise, the [Missing Text] is otherwise
responsible, Applicant shall be conclusively deemed to have waived any right to
object to such variation unless the Applicant immediately upon receipt of a copy
of the Credit or such documents or acquisition of knowledge of such variation by
any Applicant files objection with the Bank in writing specifying each variation
to which objection is made, and the basis of each objection. No legal proceeding
or action shall be brought by Applicant against the Bank arising from any
purported variation or payment made by the Bank or charge made by the Bank to
any account of the Applicant unless (i) Applicant shall have first given the
written notice as required in this paragraph and (ii) such legal proceeding or
action shall be commenced in a court of competent jurisdiction in the State of
New York within one year from the date when such copy of the Credit or document
or acquisition of such knowledge was delivered, mailed or acquired to or by the
Applicant.
11. The Applicant agrees to procure promptly any necessary import, export,
or other license for the importing, exporting, shipping, or warehousing of any
property shipped under, pursuant to, or in connection with the Credit or covered
by any document held by the Bank relative to any draft
<PAGE>
or claim accepted by the Bank, and to comply with all foreign and domestic laws
and governmental regulations in regard to the shipment and/or im-portation
and/or exportation and/or warehousing and/or the financing thereof, and to
furnish such certificates in that respect as the Bank may at any time require.
12. The Applicant consents that, without the necessity for any reservation
of rights against the Applicant and without notice or further assent by the
Applicant, the liability of any party for or upon Obligations may from time to
time, in whole or in part, be renewed, extended, modified, released, discharged,
accelerated, compromised, settled for cash, credit, or otherwise upon any terms
and conditions the Bank may deem advisable and that the Bank may discharge or
release any other party from any liabilities, all without in any way affecting
or releasing the liability of the Applicant under this Agreement.
13. If any Applicant shall fail to perform any agreement herein contained
or contained in any security document or other agreement entered into by the
Applicant with, or delivered by the Applicant to, the Bank or another, or if any
applicant defaults in the punctual payment of any sum payable upon the
Obligations or upon the happening with respect to any Applicant, an indorser or
any guarantor of Obligations, or any of them of any of the following: the
commencement of any proceeding, suit or action (at law or in equity) for
reorganization, dissolution, or liquidation; suspension or liquidation of
its/their usual business; insolvency; the filing of a voluntary or involuntary
petition under any of the provisions of any bankruptcy or similar law;
dissolution; application for, or appointment of, a conservator, rehabilitator,
or receiver of any of them or their property in any jurisdiction; termination of
existence; death; issuance of an injunction or an order of attachment; entry of
a judgment; failure to pay any tax when due; the making of any tax assessments
by the United States or any state; the calling of a meeting of creditors;
appointment of a committee of creditors or liquidating agent; offering a
composition or extension to creditors; assignment for benefit of creditors;
making or sending notice of an intended bulk transfer; commencement of any
proceeding for enforcement of a money judgment under Article 52 of the New York
Civil Practice Law and Rules or amendments thereto; failure after demand to
furnish any financial information or to permit the inspection of books or
records of account; the making of any misrepresentation to the Bank for the
purpose of obtaining the Credit or an extension of credit; or if at any time in
the Bank's opinion the financial responsibility of any of them shall become
impaired, then in any of those events all of the Obligations, although
contingent and not mature, shall, without notice or demand, forthwith become and
be immediately due and payable, notwithstanding any time or credit otherwise
allowed under any of the Obligations or under any instrument evidencing the
same.
Upon the happening of any of the events hereinabove set forth, and at any
time thereafter, the Bank shall have, in addition to all other rights and
remedies, the remedies of a secured party under the New York Uniform Commercial
Code. The Applicant shall, upon the Bank's request, assemble the Collateral and
make it available to the Bank at a place to be designated by the Bank which is
reasonably convenient to the Bank and the Applicant. The Bank will give the
Applicant notice of the time and place of any public sale of the Collateral or
of the time after which any private sale or any other intended disposition
thereof is to be made, by sending notice, as provided below, at least five days
before the time of sale or disposition, which provisions for notice the Bank and
the Applicant agree are reasonable. No notice need be given by the Bank with
respect to Collateral which is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market.
The Bank may apply the net proceeds of any sale, lease, or other
disposition of Collateral after deducting all costs and expenses of every kind
incurred herein or incidental to the retaxing, holding, preparing for sale,
selling, leasing, or the like of said Collateral, or in any way relating to the
rights of the Applicant thereunder, including reasonable inside or outside
counsel fees and expenses, to the payment, in whole or in part, in such order as
the Bank may elect, of one or more of the Obligations, whether due or not due,
absolute or contingent, making proper rebate for interest or discount on items
not then due, and only after so applying such net proceeds and after the payment
by the Bank of any other amounts required by any existing or future provision of
law (including Section 9-504(1)(c) of the Uniform Commerical Code of any
jurisdiction in which any of the Collateral may at the time be located) need the
Bank account for the surplus, if any. The Applicant shall remain liable to the
Bank for the payment of any deficiency. The Bank may pay any surplus to any
Applicant and such payment shall be a complete discharge as to all other
Applicants.
The Applicant will, at any time on the Bank's request, sign financing
statements, trust receipts, security agreements, or other agreements with
respect to any Collateral. Notwithstanding the foregoing, the Applicant hereby
authorizes the Bank, as the agent of the Applicant, to sign and file any such
statements, receipts and agreements. The Applicant agrees to pay all filing fees
and to reimburse the Bank for all costs and expenses of any kind incurred in any
way in connection with the Collateral.
14. Any notice to the Bank shall be in writing and deemed effective only if
sent to and received at the branch, division, or department conducting the
transaction or transactions hereunder. Notwithstanding the foregoing, the Bank
may act in reliance on any oral, written or teletransmitted request or notice
believed by it in good faith to have been authorized by any Applicant, whether
or not in fact sent, authorized, given or signed by an Applicant or authorized
person. If this Application or any amendments or notices with respect thereto or
with respect to the Credit is received by the Bank by means of a facsimile
transmission, the Applicant hereby authorizes the Bank to accept and to act in
reliance upon such Application, amendment or notice and the Applicant shall be
bound by the terms of such application, amendment or notice as if it were the
original executed version thereof. The transmission of this Application, any
amendments thereto and any notice with respect to the Credit by facsimile
transmission will be entirely at the risk of the Applicant and the Bank shall
not be liable for any mistake or omission in such transmission nor for the fact
that such transmission was unauthorized or fraudulent. Any notice or demand on
any Applicant shall be binding on all of the Applicants and hall be deemed
effective if not first otherwise made or given when sent to any Applicant by
mail, teletransmission, telephone, or otherwise to the last address or telephone
number of such Applicant appearing on the Bank's records with the same effect as
if the same were actually delivered to and received by each Applicant in person.
Each of the Applicants hereby irrevocably designates each of the other
Applicants as agent to receive notice and demand hereunder on its behalf. Bank
shall not by any act, delay, omission, or otherwise be deemed to have waived any
of its rights or remedies hereunder and no waiver whatever shall be valid unless
in writing, and signed on behalf of the Bank , and then only to the extent
therein set forth. A waiver by the Bank of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which it
would otherwise have on any future occasion. No term or provision of this
Agreement may be changed orally and no executory agreement unless in writing and
signed on behalf of the Bank and no course of dealing between the applicant and
the Bank shall be effective to change or modify or to discharge in whole or in
part this Agreement. All of the Bank's rights and remedies hereunder shall be
cumulative and may be exercised singly or concurrently.
15. In the event that the Bank, at the request of any Applicant, extends,
renews or refinances any of the obligations arising under paragraph 1 or
paragraph 2 hereof, by means of (a) bankers acceptances created by the
acceptance of drafts drawn by any applicant on the Bank, (b) drafts drawn by the
beneficiary of the Credit and accepted by the Bank or its correspondent, (c)
notes made by any Applicant, or (d) in the event that the Bank further extends,
renews, or refinances, from time to time, any such banker's acceptance, draft or
note, then, and in consideration thereof, the Applicant agrees to pay to the
Bank the amount of each banker's acceptance or draft in the manner provided in
paragraph 1 or paragraph 2 hereof, as the case may be, for the payment of time
drafts drawn under the Credit, or, if a note is involved, then in the manner
provided in the note. The Applicant further agrees that that with respect to any
such extension, renewal, or refinancing, all of the terms, conditions,
agreements, and obligations contained in this Agreement shall apply thereto and
that the Bank shall have all the rights and remedies set forth in this Agreement
as well as those set forth in any other document signed by or on behalf of any
Applicant. Should the Applicant obtain a steamship guarantee or airway release
in connection with the Credit, the Applicant authorizes the Bank to honor drafts
or claims presented under the Credit, whether or not such drafts or claims
and/or accompanying
<PAGE>
documents comply with the terms of the Credit and regardless of the amount of
such draft or claim, and the Applicant agrees to reimburse the Bank for all such
drafts or claims honored by it.
16. If any Applicant or guarantor of Obligations acts in any way, including
but not limited to seeking an injunction or restraining order, temporary or
permanent, or order of attachment as to any drafts, claims, acceptances, or
payments under the Credit, which has or may have the effect of preventing or
delaying payment, acceptance or remittance by the Bank of or on any draft, claim
or acceptance or discharging any Applicant or guarantor of Obligations,
Applicant agrees: (i) that the Applicant will only commence such an action in a
court of competent jurisdiction located in the County of New York, State of New
York; (ii) to bear and pay all of the Bank's expenses of any kind, including
without limitation, reasonable inside or outside counsel fees, incurred by it in
respect of such an action, (iii) to be bound by the Bank's decision, which it
shall have exclusive discretion to make, to settle, to pay or compromise any
drawing on or claim made against it, of any nature or description relating to
the Credit, including without limitation, for costs, interest, demurrage, fines,
penalties, legal fees or any expenses or charges, whether or not actually
incurred, and irrespective of amount, and to reimburse or pay the Bank promptly
on demand for all payments it elects to make with interest; and (iv) to provide
and to continue to provide to the Bank surety, indemnity or collateral upon its
demand in any amount which, in its sole judgment, it determines is reasonable
and necessary to protect its interests. Each Applicant agrees that the failure
of any applicant to comply with any provision set forth in this paragraph within
ten calendar days after any demand shall require the dismissal with prejudice of
any action brought by an Applicant against the Bank. Each Applicant shall remain
liable to indemnify and hold the Bank harmless as set forth above.
17. Bank and Applicant in any litigation (whether or not arising out of or
relating to this agreement or to any Obligations) in which the Bank and any
Applicant shall be adverse parties, irrevocably waive trial by jury and the
Applicant in addition waives the right to interpose any defense based upon any
Statute of Limitations or any claim of laches, waiver, estoppel or set-off, or
to assert any counterclaim however denominated or recover any, special,
exemplary, punitive or consequential damages of any nature in any such
litigation. Applicant will bear and pay all expenses of every kind for the
enforcement, protection or defense of any of the Bank's rights herein mentioned.
18. Each Applicant submits in any legal proceeding relating to this
Agreement or the Credit to the non-exclusive in personam jurisdiction of any
court of competent jurisdiction sitting in the State of New York and agrees to
suit being brought in any such court waives any objection that it may now or
hereafter have to the venue of such proceeding in any such court or that such
proceeding was brought in an inconvenient court agrees that service of process
in any such legal proceeding may be made, and shall be conclusively deemed
sufficient and adequate, by mailing of copies thereof (by registered or
certified mail, if practicable) postage prepaid, or by teletransmission, to
Applicant at its address set forth above or such other address of which the Bank
shall have been notified in writing, in which event, service shall be deemed
complete upon the filing with the court of a copy of the process mailed or sent
and an affidavit attesting to the mailing or sending; and agrees that nothing
herein shall affect the Bank's right to effect service of process in any other
manner permitted by law.
19. The term "Applicant" as used throughout this Agreement shall include
each entity executing the foregoing application and (a) any entity or entities
to which all or a substantial portion of the business or assets of said
Applicant shall have been transferred, (b) in case of a partnership, any new
partnership which shall have been created by reason of the admission of any new
partner or partners therein or the dissolution of the existing partnership by
death, resignation, or other withdrawal of any partner, and (c) in the case of a
corporation, any other corporation into or in which the Applicant shall have
been merged, consolidated, reorganized, or absorbed. If this application is
signed by more than one Applicant, it shall be the joint and several agreement
of all such Applicants.
20. The Applicant hereby certifies that the merchandise to be shipped under
the Credit is not prohibited under the Foreign Assets Control Regulations of the
United States Treasury Department and that any importation covered by the Credit
complies in every respect with all existing United States Government
regulations.
21. THE CREDIT SHALL BE SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION, INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION NO. 500) AND ANY AMENDMENTS THERETO AND REVISIONS THEREOF.
22. (a) If any change in any law or regulation or in the interpretation or
application thereof by any court or administrative or governmental authority
charged with the administration thereof shall either (i) impose, modify, or make
applicable any reserve, special deposit, assessment, insurance premium, or
similar requirement in connection with the Credit or (ii) impose on the Bank any
other condition regarding the Application or the Credit, and the result of any
event referred to in subsection (i) or (ii) above shall be to increase the cost
to the Bank of issuing or maintaining the Credit (which increase in cost shall
be the result of the Bank's reasonable allocation of the aggregate of such cost
increases resulting form such events), then, upon demand by the Bank, the
Applicant shall immediately pay to the Bank, from time to time as specified by
the Bank, additional amounts which shall be sufficient to compensate the Bank
for such increased cost, together with interest on each such amount from the
date demanded until payment in full thereof at the rate and on the terms set
forth in section 2 above. A certificate as to such increased cost incurred by
the Bank as a result of any event mentioned in subsection (i) or (ii) above,
submitted by the Bank to the Applicant, shall be conclusive, absent manifest
error, as to the amount thereof. (b) In the event the Bank shall have determined
that the adoption of any law, rule or regulation regarding capital adequacy, or
any change therein or in the interpretation or application thereof or compliance
by the Bank or any corporation controlling the Bank with any request or
directive regarding capital adequacy (whether or not having the force of Law)
from any central bank or governmental authority, does or shall have the effect
of reducing the rate of return on the Bank's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which the Bank or
such corporation could have achieved but for such adoption, change or compliance
(taking into consideration the Bank's or such corporation's policies with
respect to capital adequacy) by an amount deemed by the Bank to be material,
then from time to time, after submission by the Bank to Applicant of a written
request therefor (which shall be conclusive and binding upon the Applicant
absent manifest error), Applicant shall pay to the Bank such additional amount
or amounts as will compensate the Bank of such corporation for such reduction.
23. This Agreement shall be deemed to be executed in the State of New York
and the State and Federal courts in the State of New York shall have exclusive
jurisdiction over any suit commenced by Applicant or the Bank against the other.
24. This Agreement shall continue in full force and effect until the
expiration of the Credit, but, notwithstanding any such expiration, this
Agreement shall continue in full force and effect until all Obligations then
outstanding (whether absolute or contingent) shall have been paid in full and
all rights of the Bank hereunder shall have been satisfied or other arrangements
for the securing of such rights satisfactory to the Bank shall have been made.
25. Any provision of this Agreement which may prove or be declared invalid
or unenforceable under any law shall not affect the validity of any other
provision hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE
OF LAW RULES.
<PAGE>
<PAGE>
Terms and Conditions
Exhibit P
1. Payment Terms.
(a) Applicant agrees to pay to The Bank of New York ("Bank") on demand, at
Bank's office located at 48 Wall Street, New York, NY, in Dollars, in
immediately available funds: (i) each amount drawn under the Credit in
Dollars or, in event that drafts under the Credit are payable in a currency
other than Dollars, the Dollar Equivalent of each amount so drawn; (ii)
interest on each amount (or the Dollar equivalent thereof) so drawn for
each day from the date of payment of the relevant draft to and including
the date of payment in full of such amount by Applicant to Bank, at a rate
per annum equal to the rate per annum publicly announced from time to time
by Bank as its "prime" rate as in effect on each such day, the rate of
interest hereunder to change as of the opening of business on the effective
date of each change in said prime rate: and (iii) any and all commissions
and charges of, and any and all costs and expenses incurred by, Bank and
each of its correspondents in relation to the issuance and maintenance of
the Credit and all drafts thereunder.
(b) Bank is hereby authorized to charge Applicant's account(s) maintained
with Bank for any and all amounts payable hereunder.
2. Security Interest.
To secure the payment and performance of all of the Obligations, Applicant
hereby grants to Bank a continuing security interest in, and assigns and
pledges to Bank, all of the Collateral. If any Applicant shall have
executed or shall at any time execute a security agreement with Bank, the
Collateral of such Applicant shall also constitute and be included as
"Collateral" as defined in said agreement, the Obligations shall also be
"Obligations" as defined in said agreement, and, in addition to its rights
hereunder. Bank shall have all of the rights provided for in said
agreement.
3. Administration of Credit.
(a) Applicant will promptly examine the copy of the Credit (and any
amendments thereof) sent to Applicant by Bank, as well as all other
instruments and documents delivered to Applicant from time to time, and, in
the event Applicant has any claim of noncompliance with the instructions or
of any discrepancy or other irregularity, Applicant will immediately notify
Bank thereof in writing, and Applicant will conclusively be deemed to have
waived any such claim against Bank and its correspondents unless such
immediate claim against Bank and its correspondents unless such immediate
notice is given as aforesaid.
(b) Bank may (but need not) pay any drafts otherwise in order which are
signed or issued by, or accompanied by required statements or other
documents otherwise in order which are signed or issued by, the custodian,
executor, administrator, trustee in bankruptcy, debtor in possession,
assignees for the benefit of creditors, liquidator, receiver or other agent
or legal representative of the beneficiary of the Credit or other party who
is authorized under the Credit to draw or issue any drafts, required
statements or other documents.
(c) Neither Bank nor any of its correspondents shall be responsible for,
and neither Bank's powers and rights hereunder nor Applicant's Obligations
shall be affected by, (i) any act or omission pursuant to Applicant's
instructions; (ii) any other act or omission of Bank or its correspondents
or their respective agents or employees other than any such arising from
its or their gross negligence or willful misconduct; (iii) the validity,
accuracy or genuineness of drafts, documents or required statements, even
if such drafts, documents or statements should in fact prove to be in any
or all respects invalid, inaccurate, fraudulent or forged (and
notwithstanding that Applicant shall have notified Bank thereof; (iv)
failure of any draft to bear any reference or adequate reference to the
Credit; (v) errors, omissions, interruptions or delays in transmission or
delivery of any messages however sent and whether or not in code or cipher;
(vi) any act, default, omission, insolvency or failure in business of any
other person (including any correspondent) or any consequences arising form
causes beyond Bank's control; or (vii) any acts or omissions of any
beneficiary of the Credit or transferee of the Credit, if transferable.
4. Extension, Increase and Modifications of Credit.
Each Applicant agrees that Bank may at any time and from time to time, in
its discretion, by agreement with Applicant and if this Agreement is
executed by two or more Applicants, each Applicant agrees that Bank may at
any time and from time to time in its discretion, by agreements with one or
more Applicants (whether or not such other Applicants shall have been
appointed as the "Agent Applicant" in the Joint Applicant Agreement
contained in the application): (i) further finance or refinance any
transaction under the Credit; (ii) renew, extend or change the time of
payment or the manner, place or terms of payment of any of the Obligations;
(iii) settle or compromise any of the Obligations or subordinate the
payment thereof to the payment of any other debts of or claims against any
Applicant which may at the time be due or owing to Bank; or (iv) release
any Applicant or any Guarantor or any Collateral, or modify the terms under
which such Collateral is held, or forego any right of setoff, or modify or
amend in any way this Agreement or the Credit, or give any waiver or
consent under this Agreement; all in such manner and on such terms as Bank
may deem proper and without notice or further assent from such Applicant.
In any such event, Applicant shall remain bound by such event and this
Agreement after giving effect to such event, and the Obligations under this
Agreement shall be continuing Obligations in respect of any transaction so
financed or refinanced.
5. Reserve Requirements and Similar Costs.
If Bank is nor or hereafter becomes subject to any reserve, special deposit
or similar requirement against assets of, deposits with, or for the account
of, or credit extended by, Bank, or any other condition is imposed upon
Bank, which imposes a cost upon Bank, and the result, in the determination
of Bank, is to increase the cost to Bank of maintaining the Credit or
paying or funding the payment of any draft thereunder, or to reduce the
amount of any sum received or receivable by Bank hereunder, or reduce the
return to Bank, by an amount determined by Bank to be material, Applicant
will pay to Bank upon demand such amount in respect of such increased cost
or reduction as Bank may determine to be the additional amount or amounts
required to compensate Bank for such increased cost or reduction. In making
the determinations contemplated hereunder, Bank may make such estimates,
assumptions, allocations and the like which Bank in good faith determines
to be appropriate, but Bank's selection thereof, and Bank's determinations
based theron, shall be final and binding and conclusive upon Applicant.
6. Events of Default; Remedies; Pre-funding.
(a) It shall be an Event of Default if: (i) Applicant defaults in the
payment when due of any of the Obligations; (ii) Applicant otherwise
defaults in the performance of any of the Obligations; (iii) any
representation or warranty made by any Applicant to Bank in connection with
the Credit or otherwise for the purpose of obtaining credit proves to have
been incorrect or misleading in any material respect when made; (iv) any
Applicant fails to pay when due any other indebtedness for borrowed money,
the maturity of any such indebtedness is accelerated or an event occurs
which, with notice or lapse of time or both, would permit acceleration of
such indebtedness; (v) any Applicant (if an individual) or Guarantor (if an
individual) dies or becomes incompetent, or any Guarantor challenges, or
institutes any proceedings, or any proceedings are instituted, to
challenge, the validity, binding effect or enforceability of its
obligations with respect to any of the Obligations; (vi) any Applicant
challenges, or institutes any proceedings or any proceedings are
instituted, to challenge, the validity, binding effect or enforceability of
this Agreement; (vii) any Applicant (if a business entity) or any Guarantor
(if a business entity) is dissolved or is a party to any merger or
consolidation or sells or otherwise disposes of all or substantially all of
its assets without the written consent of Bank; (viii) any Applicant fails
to make available to Bank for inspection and copying any of its books and
records; (ix) any Applicant or any co-partnership of which any Applicant is
a member is expelled from or suspended by any stock or securities exchange
or other exchange; (x) any Applicant or any Guarantor becomes insolvent or
unable to meet its debts as the mature, or is generally not paying its
debts as they become due, or suspends or ceases its present business, or a
custodian, as defined in Title 11 of the United States Code, of
substantially all of its property, or a receiver or other person or entity
serving a similar function, shall have been appointed or taken possession;
or (xi) a case under such Title 11, or any proceeding under any other
federal, state or foreign bankruptcy, insolvency or other law relating to
the relief of debtors, the readjustment, composition or extension of
indebtedness or reorganization, is commenced by or against any Applicant or
any Guarantor.
(b) If any Event of Default shall have occurred and be continuing, other
than an Event of Default specified in paragraph 6 (a)(x) or 6 (a)(xi), Bank
may declare all Obligations (including any such which may be contingent and
not matured) to be immediately due and payable, and in the case of an Event
of Default specified in paragraph 6 (a)(x) or 6 (a)(xi), all such
Obligations shall automatically be immediately due and payable, in each
case without presentment, demand, protest or other notice of any kind, all
of which are expressly waived.
<PAGE>
(c) Without limiting the generality of the foregoing, Applicant agrees that
if (i) any Event of Default or event which with notice or lapse of time
would become an Event of Default shall have occurred and be continuing; or
(ii) Bank at any time and for any reason deems itself to be insecure or the
risk of non-payment or non-performance of any of the Obligations to have
increased; or (iii) in the event that the Credit is denominated in a
currency other than Dollars, Bank determines that such currency is
unavailable or that the transactions contemplated by this Agreement are
unlawful or contrary to any regulations to which Bank may be subject or
that due to currency fluctuations the Dollar Equivalent of the amount of
the Credit exceeds the amount of Dollars that Bank in its sole judgment
expected to be its maximum exposure under the Credit, then, Applicant will
upon demand pay to Bank an amount equal to the undisbursed portion, if any,
of the Credit and such amount shall be held as additional Collateral for
the payment of all Obligations hereunder, and after the expiration hereof,
to the extent not applied to the Obligations, shall be returned to
Applicant.
7. Definitions.
As used herein, the following terms shall have the following meanings: (a)
"Agreement" shall mean, collectively, the Application and Agreement for
Standby Letter of Credit, these terms and conditions, the Joint Applicant
Agreement and the Authorization and Agreement of Account Party, as the same
may be amended and supplemented from time to time.
(b) "Applicant" shall mean the person or entity executing this Agreement as
Applicant; provided that if two or more persons or entities shall have
executed this Agreement as Applicant or as Joint Applicant, the terms
"Applicant" and "Applicants" shall mean each and all of such persons and
entities, individually and collectively, except that, if the term
"Applicant" is preceded by the word "any" or "each" or a word or words of
similar import, such term shall be deemed to refer to each of such person
or entities, individually.
(c) "Credit" shall mean the irrevocable standby letter of credit issued by
Bank upon Applicant's request, as the same may be amended and supplemented
from time to time, and any and all renewals, increases, extensions and
replacements thereof and therefor.
(d) "Collateral" shall mean and include (i) ALL PERSONAL PROPERTY OF
APPLICANT OR IN WHICH APPLICANT HAS AN INTEREST WHICH IS NOW OR HEREAFTER
PLEDGED TO, GIVEN TO, OR LEFT IN THE POSSESSION OR CUSTODY OR UNDER THE
CONTROL OF, OR MAINTAINED WITH, BANK BY OR FOR THE ACCOUNT OF APPLICANT,
FOR SAFEKEEPING OR ANY OTHER PURPOSE, and whether or not Bank shall have
accepted the same for such purpose (including but not limited to any
amounts paid to Bank pursuant to paragraph 6 (c) hereof). WHETHER NOW OR
HEREAFTER EXISTING OR NOW OWNED OR HEREAFTER ACQUIRED and whether or not
subject to Article 9 of the Uniform Commercial code, including but not
limited to instruments, investment securities, money, chattel paper,
letters and advices of credit, goods, documents (together with all goods
represented thereby all insurance policies insuring same) and general
intangibles; (ii) if such property includes instruments, all distributions
thereon (including distributions with respect to instruments which are
Collateral by reason of this clause (ii) and all instruments and other
property issued with respect to or in exchange for instruments constituting
Collateral under this Agreement; and (iii) the proceeds, products and
accessions of and to any of the foregoing, in whatever form. For purposes
hereof, all remittances and property shall be deemed left in Bank's
possession as soon as put in transit to Bank by mail or carrier or
otherwise or lodged for Bank's account with any correspondent or agent.
(e) "Dollar Equivalent" shall mean (i) the number of Dollars that is
equivalent to an amount of a currency other than Dollars, determined by
applying the Bank's selling rate for the relevant currency against Dollars
applicable to cable transfers to the place where and in the currency in
which the relevant amount is payable, or (ii) in the event that Bank shall
not at the time be offering such a rate, the amount of Dollars that Bank,
in its sole judgment, specifies as sufficient to reimburse or provide funds
to Bank in respect of amounts drawn or drawable under the Credit in either
case as and when determined by Bank.
(f) "Dollars" shall mean lawful currency of the United States of America.
(g) "Guarantor" shall mean any maker, drawer, acceptor, guarantor,
indorser, surety, accommodation party or other person liable upon or in
respect of the Obligations.
(h) "Obligations" shall mean and include all indebtedness, obligations and
liabilities of Applicant to Bank, present or future, due or to become due,
absolute or contingent, arising hereunder or in connection with the Credit
or any financing or refinancing thereof.
8. Expenses; Indemnification.
Applicant agrees to reimburse Bank upon demand for and to indemnify and
hold Bank harmless from and against all claims, liabilities, losses, costs
and expenses, including attorney's fees and disbursements, incurred or
suffered by Bank in connection with the Credit; such claims, liabilities,
losses, costs and expenses shall include but not be limited to all such
incurred or suffered by Bank in connection with (a) Bank's exercise of any
right or remedy granted to it hereunder, (b) any claim and the prosecution
or defense thereof arising out of or in any way connected with this
Agreement, (c) the collection or enforcement of the Obligations, and (d)
any of the events or circumstances referred to in paragraph 3 (c) hereof.
9. No Waiver of Rights Hereunder; Rights Cumulative.
No delay by Bank in exercising any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right
preclude other or further exercises thereof or the exercise of any other
right. No waiver or amendment of any provision of this Agreement shall be
enforceable against Bank unless in writing and signed by an officer of
Bank, and unless it expressly refers to the provision affected; any such
waiver shall be limited solely to the specific event waived. All rights
granted Bank hereunder shall be cumulative and shall be supplementary of
and in addition to those granted or available to Bank under applicable law
and nothing herein shall be construed as limiting any such other right.
10. Continuing Agreement: Termination.
This Agreement shall continue in full force and effect until the expiration
of the Credit, but, notwithstanding any such expiration, this Agreement
shall continue in full force and effect until all Obligations then
outstanding (whether absolute or contingent) shall have been paid in full
and all rights of Bank hereunder shall have been satisfied or other
arrangements for the securing of such rights satisfactory to Bank shall
have been made.
11. Governing Law; Jurisdiction; Certain Waivers.
(a) This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the State of New York without regard to the
principles of conflict of laws, and Bank shall have the rights and remedies
of a secured party under applicable law, including but not limited to the
Uniform Commercial Code of New York.
(b) Applicant agrees that all actions and proceedings relating directly or
indirectly to this Agreement shall be litigated only in courts located
within the State of New York or elsewhere as Bank may select and that such
courts are convenient forums therefor and submits to the personal
jurisdiction of such courts.
(c) Applicant waives personal service of process upon it and consents that
any such service of process may be made by certified or registered mail,
return receipt requested, directed to Applicant at its address last
specified for notices hereunder, and service so made shall be deemed
completed five (5) days after the same shall have been so mailed.
(d) Applicant and Bank waive the right to trial by jury in any action or
proceeding between them based upon, arising out of or any way connected to
this Agreement, the Credit or any transaction contemplated hereby.
(e) Applicant waives the right to assert in any action or proceeding with
regard to this Agreement or any of the Obligations any offsets or
counterclaims which it may have.
12. Notices.
Any notice to Bank shall be effective only if in writing or by
authenticated teletransmission acceptable to Bank, directed to the
attention of and received by Bank's Letter of Credit Department. Any notice
to or demand on applicant, or, if more than one Applicant executes this
Agreement, the Agent Applicant, shall be binding on all Applicants and
shall be effective when made to Applicant, or, if more than one Applicant
executes this Agreement, the Agent Applicant,
<PAGE>
by mail, telegraph, cable, telephone or otherwise, in the case of mailed,
telegraphed or cable notices, to the address appearing below such
Applicant's signature or at such other address as may hereafter be
specified in a notice designated as a notice of change of address under
this paragraph, and in the case of telephonic notices, to the last
telephone number of such Applicant appearing on Bank's records. Any
requirement under applicable law of reasonable notice by Bank to Applicant
of any event shall be met if notice is given to Applicant or Agent
Applicant, as the case may be, in the manner prescribed above at least
seven days before (a) the date of such event or (b) the date after which
such event will occur.
13. General
(a) If this Agreement is executed by two or more Applicants, they shall be
jointly and severally liable hereunder, and all provisions hereof regarding
the Collateral shall apply to the Obligations and Collateral of any or all
of them.
(b) This Agreement shall be binding upon the heirs, executors,
administrators, assigns or successors of each of the Applicants and shall
inure to the benefit of and be enforceable by Bank, its successors,
transferees and assigns.
(c) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibitions or unenforceablity without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity
or enforceability of such provision in any other jurisdiction.
(d) The Credit shall be subject to the "Uniform Customs and Practice for
Documentary Credits" of the International Chamber of Commerce, as adopted
from time to time.
Joint Applicant Agreement
In consideration of your establishment of the Credit substantially as applied
for herein, we agree to the terms and conditions of this Application and
Agreement for Standby Letter of Credit and that this Application and Agreements
for Standby Letter of Credit shall be the joint and several agreement of
Applicant and all property referred to in this Agreement as belonging to
Applicant shall be understood to refer to the joint property of any or all of
the several Applicants as well as to the individual property of each of them.
The occurrence of any Event of Default as specified in paragraph 6 of this
Application and Agreement for Standby Letter of Credit with respect to any
Applicant shall mature the obligations of all Applicants. A demand made on any
Applicant pursuant to paragraph 1 of this Application and Agreement for Standby
Letter of Credit shall fix the exchange rate as to all Applicants.
We also agree that ___________________________ shall appear in the Credit as
Account Party and that ____________________ ("Agent Applicant") has the
exclusive right to issue all instructions on any and all matters relating
to the Credit, including, without limitation, instructions as to
disposition of documents and any unutilized funds, and waivers of
discrepancies, and to agree with you upon any amendments, modifications,
extensions, renewals, or increases in the Credit or any other matter
relating to this Application and Agreement for Standby Letter of Credit or
the Credit.
Joint Applicant Joint Applicant
Name: Name:
- ------------------------------------ -----------------------------------
By: By:
- ------------------------------------ -----------------------------------
Authorized Signature Authorized Signature
Title: Title:
- ------------------------------------ -----------------------------------
Address of Joint Applicant: Address of Joint Applicant:
- ------------------------------------ -----------------------------------
- ------------------------------------ -----------------------------------
Authorization and Agreement of Account Party
We join in the request of Applicant to you to issue the Credit described on page
1 hereof, naming us as Account Party and, in consideration thereof, we
irrevocably agree that (i) Applicant has the sole right to give instructions and
make agreements with respect to this Application and Agreement for Standby
Letter of Credit, the Credit and the disposition of documents and we have no
right or claim against you or your correspondent in respect of any matter
arising in connection with any of the foregoing, (ii) the terms and conditions
of this Application and Agreement for Standby Letter of Credit are applicable to
the Credit and agreed to by us and (iii) if Applicant fails to pay when due any
amount or amounts owing to you in respect of the Credit or payments or
acceptances thereunder, we will immediately pay the same to you on demand.
Applicant is authorized to assign or transfer to you all or any part of any
security held by Applicant for our obligations arising in connection with this
transaction and, upon any such assignment or transfer, you will be vested will
all powers and rights in respect of the security transferred or assigned to you.
Account Party
Name:
-----------------------------------
By:
-----------------------------------
Authorized Signature
Title:
-----------------------------------
Address of Account Party:
-----------------------------------
When specimen signatures of Account Party are not on file with The Bank of New
York, the following signature verification is required.
The above signature of an officer,
partner or agent of Account Party
indicated above conforms to that on
file with us and such officer,
partner or agent is fully
authorized to sign for such Account
Party.
-----------------------------------
Verifying Bank
By:
-----------------------------------
Authorized Signature
Title:
-----------------------------------
<PAGE>
Exhibit Q
[BROWN & WOOD LLP LETTERHEAD]
July 20, 1998
Addressed to Each of the Parties
Listed on the Attached Schedule 1
Re: $425,000,000 Revolving Credit Agreement, dated as of July 20, 1998, by
and among Alliance Capital Management L.P., each of the Banks which
are parties thereto, NationsBank, N.A., as Administrative Agent, The
Chase Manhattan Bank, as Syndication Agent, The Bank of New York, as
Documentation Agent, and NationsBank, N.A., The Chase Manhattan Bank
and The Bank of New York, as Co-Agents
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 20, 1998 (the "Agreement"), entered into by and
among the Partnership, each of the Banks which are parties thereto, NationsBank,
N.A., as Administrative Agent, The Chase Manhattan Bank, as Syndication Agent,
The Bank of New York, as Documentation Agent, and NationsBank, N.A., The Chase
Manhattan Bank and The Bank of New York, as Co-Agents. This opinion is being
delivered pursuant to Section 10.6 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
<PAGE>
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:
1. 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.
2. The General Partner is a corporation duly 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.
3. 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).
4. 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 18 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).
5. 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).
6. 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
2
<PAGE>
the Partnership is a party, except where the conflict, breach or default would
not be likely to have a 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.
7. 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.
8. 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,
Brown & Wood LLP
<PAGE>
SCHEDULE 1
NationsBank, N.A.
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255
Attn: CCS/Agency Services - Ref: Alliance Capital Management L.P.
Facsimile Number: (704) 386-9923
The Chase Manhattan Bank
270 Park Avenue
36th Floor
New York, New York 10017
Attn: David J. Cintron
Facsimile Number: (212) 270-1789
The Bank of New York
One Wall Street, 7th Floor
New York, New York 10286
Attn: Lee B. Stephens, III
Facsimile Number: (212) 635-6348
Deutsche Bank AG, New York and/or
Cayman Islands Branches
31 West 52nd Street
New York, New York 10019
Attn: Peter J. Bassler
Facsimile Number: (212) 474-8386
Revolving Commitment Vehicle Corporation
By: Morgan Guaranty Trust Company of New York,
as Attorney-in-Fact for Revolving Commitment
Vehicle Corporation
60 Wall Street, 22nd Floor
New York, New York 10260-0060
Attn: Linda Winter-Irving
Facsimile Number: (212) 648-5249
Fleet National Bank
777 Main Street
Hartford, Connecticut 06115
Attn: Jan-Gee McCollam
Facsimile Number: (860) 986-1264
Schedule 1-Page 1
<PAGE>
SCHEDULE 1
Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281-1050
Attn: Joe Hayes
Facsimile Number: (212) 266-7629
Dresdner Bank AG, New York Branch and
Grand Cayman Branch
75 Wall Street
New York, New York 10005
Attn: Robert P. Donohue
Facsimile Number: (212) 429-2524
The First National Bank of Chicago
153 W. 51st Street
6th Floor
New York, New York 10019
Attn: Nicole Holzapfel
Facsimile Number: (212) 373-1393
State Street Bank and Trust Company
1776 Heritage Drive
No. Quincy, Massachusetts 02171
Attn: Anne Marie Gualtieri
Facsimile Number: (617) 537-1196
<PAGE>
Selected Consolidated Financial Data
(In thousands, unless otherwise indicated)
<TABLE>
<CAPTION>
ALLIANCE CAPITAL MANAGEMENT L.P.(1)
YEARS ENDED DECEMBER 31,
1998 1997 1996 1995 1994
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Income statement data:
Revenues:
Investment advisory and services fees:
Alliance mutual funds $ 588,396 $384,759 $291,601 $232,730 $211,169
Separately managed accounts:
Affiliated clients 58,051 52,930 44,901 43,978 41,805
Third party clients 306,545 261,290 227,530 179,872 163,171
Distribution revenues 301,846 216,851 169,071 130,543 139,091
Shareholder servicing fees 43,475 36,327 31,272 26,575 24,501
Other revenues 25,743 23,179 24,142 25,557 21,215
- ------------------------------------------------------------------------------------------------------------------------
1,324,056 975,336 788,517 639,255 600,952
- ------------------------------------------------------------------------------------------------------------------------
Expenses:
Employee compensation and benefits 340,923 264,251 214,880 172,301 173,777
Promotion and servicing:
Distribution plan payments to financial
intermediaries:
Affiliated 82,444 56,118 30,533 23,710 20,442
Third party 178,643 121,791 115,112 86,743 83,357
Amortization of deferred sales commissions 108,853 73,841 53,144 50,501 51,547
Other 90,400 60,416 48,868 40,161 43,270
General and administrative 162,323 120,283 100,854 88,889 70,731
Interest 7,586 2,968 1,923 1,192 7,572
Amortization of intangible assets 4,172 7,006 15,613 8,747 8,450
Reduction in recorded value of intangible assets -- 120,900 -- -- --
- ------------------------------------------------------------------------------------------------------------------------
975,344 827,574 580,927 472,244 459,146
- ------------------------------------------------------------------------------------------------------------------------
Income before income taxes 348,712 147,762 207,590 167,011 141,806
Income taxes 55,796 18,806 14,244 11,624 8,317
- ------------------------------------------------------------------------------------------------------------------------
Net income $ 292,916 $128,956 $193,346 $155,387 $133,489
========================================================================================================================
Net income per Unit(2):
Basic net income per Unit(3) $1.71 $0.76 $1.15 $0.95 $0.86
Diluted net income per Unit(3) $1.66 $0.74 $1.13 $0.94 $0.85
Before reduction in value of intangible assets:
Net income $292,916 $249,856 $193,346 $155,387 $133,489
Diluted net income per Unit(3) $1.66 $1.44 $1.13 $0.94 $0.85
Cash distributions per Unit(2)(4) $1.62 $1.40 $1.095 $0.91 $0.82
Balance sheet data at period end:
Total assets $1,132,592 $784,460 $725,897 $575,058 $518,369
Debt and long-term obligations(5) $ 238,089 $130,429 $ 52,629 $ 30,839 $ 29,021
Partners' capital $ 430,273 $398,051 $476,020 $406,709 $381,329
Assets under management at period end (in millions)(6) $ 286,659 $218,654 $182,792 $146,521 $119,279
========================================================================================================================
</TABLE>
(1) Certain amounts in the financial statements have been reclassified to
conform with the 1998 presentation.
(2) Unit and per Unit amounts for all periods prior to the two-for-one Unit
split in 1998 have been restated.
(3) Earnings per Unit amounts prior to 1997 have been restated as required to
comply with Statement of Financial Accounting Standards No. 128, Earnings
per Share.
(4) The Partnership is required to distribute all of its Available Cash Flow,
as defined in the Partnership Agreement, to the General Partner and
Unitholders.
(5) Includes accrued compensation and benefits due after one year and debt.
(6) Assets under management exclude certain non-discretionary advisory
relationships and reflect 100% of the assets managed by unconsolidated
joint venture subsidiaries and affiliates.
1998 Annual Report 43
<PAGE>
Management's Discussion and Analysis of
Financial Condition and Results of Operations
General
Alliance Capital Management L.P. (the "Partnership") offers a broad range of
investment management products and services to meet the varied needs and
objectives of individual and institutional investors. The Partnership derives
substantially all of its revenues and net income from fees received for
providing: (a) investment advisory, distribution and related services to the
Alliance mutual funds, (b) investment advisory services to affiliated clients
including The Equitable Life Assurance Society of the United States ("ELAS"), a
wholly-owned subsidiary of The Equitable Companies Incorporated ("Equitable"),
and certain other Equitable affiliates and (c) investment advisory services to
separately managed accounts for unaffiliated institutional investors and
high-net-worth individuals ("third party clients"). The Alliance mutual funds
consist primarily of a broad range of open-end load and closed-end mutual funds
("mutual funds"), variable life insurance and annuity products, including The
Hudson River Trust, cash management products, principally money market funds and
certain structured products and hedge funds.
The Partnership's revenues are largely dependent on the total value and
composition of assets under its management. Assets under management grew 31.1%
to $286.7 billion as of December 31, 1998 primarily as a result of market
appreciation, good investment performance, and strong net sales of Alliance
mutual funds. Active equity and balanced account assets under management, which
comprise approximately 54% of total assets under management, grew 40%. Active
fixed income account assets under management, whi ch comprise 36% of total
assets under management, increased by 22%.
On December 22, 1998, the Partnership acquired Whittingdale Holdings
Limited ("Whittingdale"), with $1.5 billion in assets under management, for
approximately $10.2 million. The purchase price consists of an initial payment
of $4.8 million in cash and two deferred payments estimated at $5.4 million in
the aggregate. The acquisition was accounted for under the purchase method with
the results of Whittingdale included in the Partnership's consolidated financial
statements from the acquisition date.
In 1998, sales of Alliance mutual fund shares grew to $38.7 billion
compared to sales of $22.5 billion in 1997. The increase in Alliance mutual fund
sales, principally domestic U.S. equity mutual funds and fixed income funds sold
to non-U.S. investors, combined with an increase in mutual fund redemptions,
resulted in net Alliance mutual fund sales of $23.9 billion, an increase of
71.9% from $13.9 billion in 1997.
<TABLE>
<CAPTION>
Assets Under Management(1):
(Dollars in billions) 12/31/98 12/31/97 % Change 12/31/97 12/31/96 % Change
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Alliance mutual funds:
Mutual funds $ 60.7 $ 40.4 50.2% $ 40.4 $ 27.6 46.4%
Variable products 31.4 23.8 31.9 23.8 17.1 39.2
Cash management products 26.5 20.8 27.4 20.8 18.6 11.8
- ----------------------------------------------------------------------------------------------------------------
118.6 85.0 39.5 85.0 63.3 34.3
- ----------------------------------------------------------------------------------------------------------------
Separately managed accounts:
Affiliated clients 28.9 28.4 1.8 28.4 26.1 8.8
Third party clients 139.2 105.3 32.2 105.3 93.4 12.7
- ----------------------------------------------------------------------------------------------------------------
168.1 133.7 25.7 133.7 119.5 11.9
- ----------------------------------------------------------------------------------------------------------------
Total $286.7 $218.7 31.1% $218.7 $182.8 19.6%
================================================================================================================
</TABLE>
44 Alliance Capital
<PAGE>
<TABLE>
<CAPTION>
Assets Under Management(1):
(Dollars in billions) 12/31/98 12/31/97 % Change 12/31/97 12/31/96 % Change
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Active equity & balanced
Domestic $142.1 $ 98.1 44.9% $ 98.1 $ 76.7 27.9%
Global & international 12.6 12.7 (0.8) 12.7 14.8 (14.2)
Active fixed income
Domestic 88.5 76.2 16.1 76.2 65.0 17.2
Global & international 14.1 8.0 76.3 8.0 7.0 14.3
Index
Domestic 24.7 20.8 18.8 20.8 15.9 30.8
Global & international 4.7 2.9 62.1 2.9 3.4 (14.7)
- -------------------------------------------------------------------------------------------------------------------------------
Total $286.7 $218.7 31.1% $218.7 $182.8 19.6%
===============================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Average Assets Under Management(1):
(Dollars in billions) 1998 1997 % Change 1997 1996 % Change
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Alliance mutual funds $100.5 $ 72.9 37.9% $ 72.9 $ 56.2 29.7%
Separately managed accounts:
Affiliated clients 29.5 28.1 5.0 28.1 24.8 13.3
Third party clients 120.5 99.4 21.2 99.4 86.3 15.2
- -------------------------------------------------------------------------------------------------------------------------------
Total $250.5 $200.4 25.0% $200.4 $167.3 19.8%
===============================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Analysis of Assets Under Management(1):
(Dollars in billions) 1998 1997 1996
- -----------------------------------------------------------------------------------------------------------------------------------
SEPARATELY ALLIANCE SEPARATELY ALLIANCE SEPARATELY ALLIANCE
MANAGED MUTUAL MANAGED MUTUAL MANAGED MUTUAL
ACCOUNTS FUNDS TOTAL ACCOUNTS FUNDS TOTAL ACCOUNTS FUNDS TOTAL
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at beginning of year $133.7 $ 85.0 $218.7 $119.5 $63.3 $182.8 $ 97.3 $49.2 $146.5
- -----------------------------------------------------------------------------------------------------------------------------------
Acquisitions 1.4 0.1 1.5 -- -- -- 11.0 0.3 11.3
New business/sales 6.8 32.9 39.7 3.7 20.3 24.0 3.7 9.7 13.4
Terminations/redemptions (3.5) (14.8) (18.3) (6.8) (8.6) (15.4) (3.0) (5.8) (8.8)
Net cash management sales -- 5.8 5.8 -- 2.2 2.2 -- 4.8 4.8
Cash flow (0.3) (1.5) (1.8) (5.0) (1.0) (6.0) (1.1) (0.9) (2.0)
Appreciation/(depreciation) 29.8 10.4 40.2 22.1 8.1 30.2 11.6 6.0 17.6
Change in joint venture
subsidiaries and affiliates 0.2 0.7 0.9 0.2 0.7 0.9 -- -- --
- -----------------------------------------------------------------------------------------------------------------------------------
Net change 34.4 33.6 68.0 14.2 21.7 35.9 22.2 14.1 36.3
- -----------------------------------------------------------------------------------------------------------------------------------
Balance at end of year $168.1 $118.6 $286.7 $133.7 $85.0 $218.7 $119.5 $63.3 $182.8
===================================================================================================================================
</TABLE>
(1) Includes 100% of assets under management of unconsolidated joint venture
subsidiaries and affiliates. Includes $1.4 billion mutual fund assets and
$0.4 billion separately managed account assets at December 31, 1998 and $0.7
billion mutual fund assets and $0.2 billion separately managed account
assets at December 31, 1997.
Assets under management at December 31, 1998 were $286.7 billion, an increase of
$68.0 billion or 31.1% from December 31, 1997. Alliance mutual fund assets under
management at December 31, 1998 were $118.6 billion, an increase of $33.6
billion or 39.5% from December 31, 1997, due principally to market appreciation
of $10.4 billion and net sales of mutual funds, variable products and cash
management products of $15.4 billion, $2.7 billion and $5.8 billion,
respectively. Separately managed account assets under management at December 31,
1998 were $168.1 billion,
1998 Annual Report 45
<PAGE>
an increase of $34.4 billion or 25.7% from December 31, 1997. This increase was
primarily due to market appreciation of $29.8 billion, net new client accounts
of $3.0 billion and the acquisition of Whittingdale, which had $1.4 billion in
separately managed account assets under management.
Cursitor Alliance LLC ("Cursitor Alliance"), a subsidiary of the
Partnership formed in connection with a 1996 acquisition, provides global asset
allocation services to U.S. and non-U.S. institutional investors. Due to poor
relative investment performance, Cursitor Alliance continued to experience
client account terminations and asset withdrawals through the first quarter of
1998. Cursitor Alliance's assets under management aggregated $1.7 billion, $3.5
billion and $8.4 billion at December 31, 1998, 1997, and 1996, respectively. See
"Reduction in Recorded Value of Intangible Assets" and "Capital Resources and
Liquidity."
Assets under management at December 31, 1997 were $218.7 billion, an
increase of $35.9 billion or 19.6% from December 31, 1996. Alliance mutual fund
assets under management at December 31, 1997 were $85.0 billion, an increase of
$21.7 billion or 34.3% from December 31, 1996, due principally to market
appreciation of $8.1 billion and net sales of mutual funds, variable products
and cash management products of $8.7 billion, $3.0 billion and $2.2 billion,
respectively. Separately managed account assets under management at December 31,
1997 were $133.7 billion, an increase of $14.2 billion or 11.9% from December
31, 1996. This increase was primarily due to market appreciation of $22.1
billion and net asset additions to affiliated client accounts of $1.7 billion,
offset partially by net third party client account terminations and asset
withdrawals of $9.8 billion, primarily from Cursitor Alliance global asset
allocation accounts and active equity and balanced accounts.
<TABLE>
<CAPTION>
Consolidated Results of Operations
(Dollars & Units in millions,
except per Unit amounts) 1998 1997 % CHANGE 1997 1996 % CHANGE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net income $292.9 $129.0 127.1% $129.0 $193.3 (33.3)%
Net income per Unit(1):
Basic $ 1.71 $ 0.76 125.0 $ 0.76 $ 1.15 (33.9)
Diluted $ 1.66 $ 0.74 124.3 $ 0.74 $ 1.13 (34.5)
Net income before reduction in value of
intangible assets $292.9 $249.9 17.2 $249.9 $193.3 29.3
Net income per Unit before reduction in
value of intangible assets - Diluted(1) $ 1.66 $ 1.44 15.3 $ 1.44 $ 1.13 27.4
Weighted average number of Units outstanding(1):
Basic 169.9 168.4 0.9 168.4 166.4 1.2
Diluted 175.1 171.9 1.9% 171.9 169.0 1.7%
Operating margin(2) 26.3% 27.5% 27.5% 26.3%
================================================================================================================================
</TABLE>
(1) Unit and per Unit amounts for all periods prior to the two-for-one Unit
split in 1998 have been restated.
(2) Excludes the reduction in recorded value of Cursitor Alliance intangible
assets.
Net income for 1998 increased $163.9 million or 127.1% to $292.9 million from
net income of $129.0 million for 1997. 1998 net income also reflects an increase
of $43.0 million or 17.2% from net income of $249.9 million before the noncash
charge to reduce the value of Cursitor Alliance intangible assets for 1997. The
17.2% increase in net income for 1998 was principally due to an increase in
investment advisory and services fees resulting from higher average assets under
management offset partially by higher income taxes.
46 Alliance Capital
<PAGE>
Net income for 1997 was $129.0 million, a decrease of 33.3% from net
income of $193.3 for 1996. Net income for 1997 was reduced by a $120.9 million
noncash charge, or $0.70 diluted net income per Unit, resulting from the
write-down of certain intangible assets. See "Reduction in Recorded Value of
Intangible Assets" and "Capital Resources and Liquidity." Excluding that charge,
net income increased 29.3% due principally to a 23.9% increase in investment
advisory and services fees resulting from higher average assets under
management.
<TABLE>
<CAPTION>
Revenues
(Dollars in millions) 1998 1997 % CHANGE 1997 1996 % CHANGE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Investment advisory and services fees:
Alliance mutual funds $ 588.4 $384.8 52.9% $384.8 $291.6 32.0%
Separately managed accounts:
Affiliated clients 58.1 52.9 9.8 52.9 44.9 17.8
Third party clients 306.5 261.3 17.3 261.3 227.5 14.9
Distribution revenues 301.9 216.8 39.3 216.8 169.1 28.2
Shareholder servicing fees 43.5 36.3 19.8 36.3 31.3 16.0
Other revenues 25.7 23.2 10.8 23.2 24.1 (3.7)
- --------------------------------------------------------------------------------------------------------------------------------
Total $1,324.1 $975.3 35.8% $975.3 $788.5 23.7%
================================================================================================================================
</TABLE>
Investment Advisory and Services Fees
Investment advisory and services fees, the largest component of the
Partnership's revenues, are generally calculated as a small percentage of the
value of assets under management and vary with the type of account managed. Fee
income is therefore affected by changes in the amount of assets under
management, including market appreciation or depreciation, the addition of new
client accounts or client contributions of additional assets to existing
accounts, withdrawals of assets from and termination of client accounts,
purchases and redemptions of mutual fund shares, and shifts of assets between
accounts or products with different fee structures. The Partnership's investment
advisory and services fees increased 36.3% and 23.9% in 1998 and 1997,
respectively.
Certain investment advisory agreements provide for performance fees in
addition to a base fee. Performance fees are earned when investment performance
exceeds a contractually agreed upon benchmark and, accordingly, may increase the
volatility of the Partnership's revenues and earnings and are more likely to be
higher in favorable markets and lower in unfavorable markets. Performance fees
earned on separately managed accounts and mutual funds aggregated $52.9 million,
$35.0 million, and $18.4 million in 1998, 1997 and 1996, respectively.
Investment advisory and services fees from Alliance mutual funds
increased by $203.6 million or 52.9% for 1998, primarily as a result of a 37.9%
increase in average assets under management. The growth in investment advisory
fees from Alliance mutual funds exceeded the growth in average assets under
management primarily as a result of increases in sales of higher fee-based
mutual fund products, such as offshore fixed income and domestic equity mutual
funds. An increase in performance fees of $15.7 million for 1998 also
contributed to the increase in fees. Investment advisory and services fees from
Alliance mutual funds increased by $93.2 million or 32.0% for 1997, primarily as
a result of a 29.7% increase in average assets under management.
1998 Annual Report 47
<PAGE>
Investment advisory and services fees from affiliated clients,
primarily the General Accounts of ELAS, increased by $5.2 million or 9.8% for
1998, due to a 5.0% increase in average assets under management from 1997 and an
increase in performance fees of $1.8 million. Investment advisory and services
fees from affiliated clients increased 17.8% for 1997 due principally to a 13.3%
increase in average assets under management and an increase in performance fees
of $2.8 million.
Investment advisory and services fees from third party clients
increased by $45.2 million or 17.3% for 1998 and by $33.8 million or 14.9% for
1997 principally due to an increase in average assets under management of 21.2%
and 15.2%, respectively. The increase in third party client assets under
management was primarily a result of market appreciation and net new client
accounts in 1998 mainly active equity and balanced and active fixed income
accounts. An $11.8 million increase in performance fees in 1997 contributed to
the increase in fees in 1997.
Distribution Revenues
The Partnership's subsidiary, Alliance Fund Distributors, Inc., ("AFD"), acts as
distributor of the Alliance mutual funds and receives distribution plan fees
from those funds in reimbursement of distribution expenses it incurs.
Distribution revenues increased 39.3% and 28.2% in 1998 and 1997, respectively,
principally due to higher average equity mutual fund assets under management
attributable to strong sales of Back-End Load Shares under the Partnership's
mutual fund distribution system (the "System") described under "Capital
Resources and Liquidity," and higher average cash management assets under
management.
Shareholder Servicing Fees
The Partnership's subsidiaries, Alliance Fund Services, Inc. and ACM Fund
Services S.A., provide transfer agency services to the Alliance mutual funds.
Shareholder servicing fees increased 19.8% and 16.0% in 1998 and 1997,
respectively, the result of increases in the number of mutual fund shareholder
accounts serviced and increased fees. The number of shareholder accounts
serviced increased to approximately 3.7 million as of December 31, 1998,
compared to 3.2 million and 2.8 million as of December 31, 1997 and 1996,
respectively.
Other Revenues
Other revenues consist principally of administration and recordkeeping services
provided to the Alliance mutual funds and the General Accounts of ELAS and its
insurance subsidiary. Investment income and changes in value of other
investments are also included in other revenues. Other revenues increased for
1998 principally as a result of changes in the market value of the Partnership's
hedge fund investments. Other revenues decreased for 1997, principally as a
result of a decrease in interest earned on short-term investments due to lower
average balances.
48 Alliance Capital
<PAGE>
<TABLE>
<CAPTION>
Expenses
(Dollars in millions) 1998 1997 % CHANGE 1997 1996 % CHANGE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Employee compensation and benefits $340.9 $264.3 29.0% $264.3 $214.9 23.0%
Promotion and servicing 460.3 312.1 47.5 312.1 247.6 26.1
General and administrative 162.3 120.3 34.9 120.3 100.9 19.2
Interest 7.6 3.0 153.3 3.0 1.9 57.9
Amortization of intangible assets 4.2 7.0 (40.0) 7.0 15.6 (55.1)
Reduction in recorded value of intangible assets -- 120.9 -- 120.9 -- --
- --------------------------------------------------------------------------------------------------------------------------------
Total $975.3 $827.6 17.8% $827.6 $580.9 42.5%
================================================================================================================================
</TABLE>
Employee Compensation and Benefits
Employee compensation and benefits, which represent approximately 35% of total
expenses in 1998, include salaries, commissions, fringe benefits and incentive
compensation based on profitability. Provisions for future payments to be made
under certain deferred compensation arrangements are also included in employee
compensation and benefits expense.
Employee compensation and benefits increased 29.0% and 23.0% in 1998
and 1997, respectively, primarily as a result of higher incentive compensation
due to increased operating earnings and increased base compensation and
commissions. Base compensation increased principally due to an increase in the
number of employees resulting from the expansion of the Partnership's mutual
fund servicing operations, new technology initiatives and salary increases. The
Partnership had 2,075 employees at December 31, 1998 compared to 1,670 and 1,495
at December 31, 1997 and 1996, respectively. Commissions increased primarily due
to higher mutual fund sales.
Promotion and Servicing
Promotion and servicing expenses, which represent approximately 47% of total
expenses in 1998 include distribution plan payments to financial intermediaries
for distribution of the Partnership's sponsored mutual funds and cash management
services' products and amortization of deferred sales commissions paid to
financial intermediaries for the sale of Back-End Load Shares under the System
(see "Capital Resources and Liquidity"). Also included in this expense category
are travel and entertainment, advertising, promotional materials, and investment
meetings and seminars for financial intermediaries that distribute the
Partnership's mutual fund products.
Promotion and servicing expenses increased 47.5% and 26.1% in 1998 and
1997, respectively, primarily due to increased distribution plan payments
resulting from higher average offshore mutual fund, cash management, and
domestic equity mutual fund assets under management. An increase in amortization
of deferred sales commissions of $35.0 million for 1998 as a result of higher
sales of Back-End Load Shares (see "Capital Resources and Liquidity") also
contributed to the increase in promotion and servicing expense. Other promotion
and servicing expenses increased for 1998 and 1997 primarily as a result of
higher travel and entertainment costs and higher promotional expenditures
incurred in connection with mutual fund sales initiatives.
1998 Annual Report 49
<PAGE>
General and Administrative
General and administrative expenses, which represent approximately 17% of total
expenses in 1998, are costs related to the operation of the business, including
technology, professional fees, occupancy, communications, equipment and similar
expenses. General and administrative expenses increased 34.9% and 19.2% in 1998
and 1997, respectively, due principally to higher expenses incurred in
connection with the Year 2000 project, Euro conversion and other technology
initiatives. In addition, for 1998, a $10.0 million provision for the future
acquisition of the minority interest in Cursitor Alliance contributed to the
increase. See "Capital Resources and Liquidity."
Interest
Interest expense is incurred on the Partnership's borrowings and on deferred
compensation owed to employees. Interest expense increased for 1998 and 1997
primarily as a result of an increase in interest accrued on higher deferred
compensation liabilities and debt.
Amortization of Intangible Assets
Amortization of intangible assets is primarily attributable to the intangible
assets recorded in connection with the acquisitions made by the Partnership and
the acquisition of ACMC, Inc., the predecessor of the Partnership, by ELAS
during 1985. Amortization of intangibles decreased for 1998 principally due to
the reduction of goodwill and certain costs assigned to investment contracts of
Cursitor Alliance. See "Reduction in Recorded Value of Intangible Assets."
Reduction in Recorded Value of Intangible Assets
The Partnership recorded a noncash charge of $120.9 million during the second
quarter of 1997 to reduce the unamortized value of intangible assets to fair
market value due to the decline in Cursitor Alliance's assets under management
and its reduced profitability.
Taxes on Income
The Partnership is a publicly traded partnership for federal income tax purposes
and, accordingly, is not subject to federal or state corporate income taxes.
However, the Partnership is subject to the New York City unincorporated business
tax. As a result of the Partnership's decision to remain a publicly traded
partnership pursuant to the Taxpayer Relief Act of 1997, the Partnership became
subject to a new 3.5% federal tax on partnership gross income from the active
conduct of a trade or business on January 1, 1998. Domestic corporate
subsidiaries of the Partnership, which are subject to federal, state and local
income taxes file a consolidated federal income tax return and separate state
and local income tax returns. Foreign corporate subsidiaries are generally
subject to taxes in the foreign jurisdictions where they are located. Income tax
expense increased in 1998 primarily as a result of the new 3.5% federal tax and
higher pre-tax income. The 1997 provision for income taxes increased primarily
as a result of the increase in taxable income of the Partnership and certain of
its corporate subsidiaries.
50 Alliance Capital
<PAGE>
Capital Resources and Liquidity
Partners' capital was $430.3 million at December 31, 1998, an increase of $32.2
million or 8.1% from $398.1 million at December 31, 1997. Partners' capital was
$398.1 million at December 31, 1997, a decrease of $77.9 million or 16.4% from
$476.0 million at December 31, 1996. The decrease in 1997 was principally due to
the noncash charge of $120.9 million. See "Reduction in Recorded Value of
Intangible Assets."
Cash flow from operations and proceeds from borrowings have been the
Partnership's principal sources of working capital. During 1998, the
Partnership's cash and cash equivalents increased by $11.4 million. Cash inflows
include $258.0 million from operations, proceeds from borrowings net of debt
repayments of $99.6 million and $8.4 million of proceeds from exercises of Unit
options. Cash outflows included $274.4 million in distributions to Unitholders,
$31.9 million in capital expenditures, net purchases of investments of $46.6
million and $2.9 million for the acquisition of Whittingdale.
Under certain circumstances through February 28, 2006, the Partnership
has an option to purchase the minority interest in Cursitor Alliance and the
holders of the minority interest have an option to sell the minority interest to
the Partnership for cash, Units, or a combination thereof with a value of not
less than $10.0 million or more than $37.0 million ("Buyout Price"). The Buyout
Price will be determined based on the amount of global asset allocation
investment advisory revenues earned by Cursitor Alliance during a twelve-month
period ending on the February 28th preceding the date either option is
exercised. Due to the decline in Cursitor Alliance revenues, management of the
Partnership believes that the Buyout Price for the minority interest will be
$10.0 million, which will be substantially higher than its fair value.
Accordingly, the Partnership recorded a $10.0 million provision for the Buyout
Price in the first quarter of 1998.
The Partnership's mutual fund distribution system (the "System")
includes a multi-class share structure. The System permits the Partnership's
open-end mutual funds to offer investors various options for the purchase of
mutual fund shares, including the purchase of Front-End Load Shares and Back-End
Load Shares. The Front-End Load Shares are subject to a conventional front-end
sales charge paid by investors to AFD at the time of sale. AFD in turn
compensates the financial intermediaries distributing the funds from the
front-end sales charge paid by investors. For Back-End Load Shares, investors do
not pay a front-end sales charge although, if there are redemptions before the
expiration of the minimum holding period (which ranges from one year to four
years), investors pay a contingent deferred sales charge ("CDSC") to AFD. While
AFD is obligated to compensate the financial intermediaries at the time of the
purchase of Back-End Load Shares, it receives higher ongoing distribution fees
from the funds. Payments made to financial intermediaries in connection with the
sale of Back-End Load Shares under the System, net of CDSC received, reduced
cash flow from operations by approximately $232.5 million and $150.3 million
during 1998 and 1997, respectively. Management of the Partnership believes AFD
will recover the payments made to financial intermediaries for the sale of
Back-End Load Shares from the higher distribution fees and CDSC it receives over
periods not exceeding 5-1/2 years.
1998 Annual Report 51
<PAGE>
During 1998, the Partnership entered into a $425.0 million five-year
revolving credit facility with a group of commercial banks which replaced a
$250.0 million revolving credit facility. The Partnership also increased the
amount it may borrow under its commercial paper program from $250.0 million to
$425.0 million during 1998. Borrowings under the facility and the Partnership's
commercial paper program may not exceed $425.0 million in the aggregate. The
revolving credit facility will be used to provide backup liquidity for
commercial paper issued under the Partnership's commercial paper program, to
fund commission payments to financial intermediaries for the sale of back-end
load shares under the Partnership's mutual fund distribution system, and for
general working capital purposes. At December 31, 1998, the Partnership had
$179.5 million of commercial paper outstanding and there were no borrowings
outstanding under the Partnership's revolving credit facility.
The Partnership's substantial equity base and access to public and private debt,
at competitive interest rates and other terms, should provide adequate liquidity
for its general business needs. Management of the Partnership believes that cash
flow from operations and the issuance of debt and Units will provide the
Partnership with the financial resources to meet its capital requirements for
mutual fund sales and its other working capital requirements.
Year 2000
Many computer systems and applications that process transactions use two digit
date fields for the year of a transaction, rather than the full four digits. If
these systems are not modified and replaced, transactions occurring after 1999
may be processed as year "1900," which could result in processing inaccuracies
and inoperability at or after the Year 2000. The Partnership utilizes a number
of computer systems and applications that it either has developed internally or
licensed from third-party suppliers. In addition, the Partnership is dependent
on third-party suppliers for certain systems applications and for the electronic
receipt of information critical to its business.
The Year 2000 issue is a high priority for the Partnership. During
1997, the Partnership began a formal Year 2000 initiative, which established a
structured and coordinated process to deal with the Year 2000 issue. As part of
its initiative, the Partnership established a Year 2000 project office to manage
the Year 2000 initiative focusing on both information technology and
non-information technology systems. The Year 2000 project office meets
periodically with the Audit Committee of the Board of Directors and executive
management to review the status of the Year 2000 efforts. The Partnership has
also retained the services of a number of consulting firms which have expertise
in advising and assisting with regard to Year 2000 issues.
By June 30, 1998 the Partnership had completed its inventory and
assessment of its domestic and international computer systems and applications,
identified mission critical systems (those systems where loss of their function
would result in an immediate stoppage or significant impairment of core business
units) and nonmission critical systems and determined which of these systems is
not Year 2000 compliant. All third-party suppliers of mission critical computer
systems and applications have been contacted to verify whether their systems and
applications will be Year 2000 compliant and their responses are being
evaluated. Substantially all of those contacted have responded
52 Alliance Capital
<PAGE>
and approximately 76% have informed the Partnership that their systems and
applications are or will be Year 2000 compliant. Those who have not responded
have been contacted a second time. The Partnership estimates that this process
will be completed by the first quarter of 1999. The same process is being
performed for nonmission critical systems with estimated completion by the
second quarter of 1999.
The Partnership has remediated, replaced or retired most of its
noncompliant mission critical systems and applications. The Partnership expects
that the remediation phase for all mission critical systems will be completed by
February 28, 1999 with the exception of one portfolio accounting system, which
will be replaced by a Year 2000 compliant system by August 31, 1999. The same
process will be performed for nonmission critical systems and is estimated to be
completed by the second quarter of 1999.
After each system has been remediated, it is tested with 19XX dates to
determine if it still performs its intended business function correctly. Next,
each system undergoes a simulation test using dates occurring after December 31,
1999. Inclusive of the replacement and retirement of some of its systems, the
Partnership has completed these testing phases for approximately 88% of mission
critical systems and approximately 75% of nonmission critical systems.
Integrated systems tests will then be conducted to verify that the systems will
continue to work together. Full integration testing of all mission critical and
nonmission critical systems and testing of interfaces with third-party suppliers
will begin in the first quarter of 1999 and will continue throughout 1999.
The Partnership is in the process of inventorying, evaluating and
testing its technical infrastructure and corporate facilities and expects them
to be fully operable in the Year 2000.
The Partnership has deferred certain other planned information
technology projects until after the Year 2000 initiative is completed. Such
delay is not expected to have a material adverse effect on the Partnership's
financial condition or results of operations.
The Partnership, with the assistance of a consulting firm, is
developing formal Year 2000 specific contingency plans to address situations
where mission critical and nonmission critical systems are not remediated as
planned by the Partnership or third parties. These plans will be completed by
June 30, 1999.
The current cost estimate of the Year 2000 initiative ranges from
approximately $40 million to $45 million. These costs consist principally of
modification costs and costs to develop formal Year 2000 specific contingency
plans. These costs, most of which will be expensed as incurred, will be funded
out of cash flow from the Partnership's operations. Through December 31, 1998,
the Partnership had incurred approximately $22 million of costs related to the
Year 2000 initiative. At this time, management of the Partnership believes that
the costs associated with resolving the Year 2000 issue will not have a material
adverse effect on the Partnership's results of operations, liquidity or capital
resources.
There are many risks associated with Year 2000 issues, including the
risk that the Partnership's computer systems and applications will not operate
as intended and that the systems and applications of third parties will not be
Year 2000 compliant. Likewise, there can be no assurance the compliance
schedules outlined above will be met or that
1998 Annual Report 53
<PAGE>
the actual costs incurred will not exceed the current cost estimate. Should the
Partnership's significant computer systems and applications or the systems of
its important third-party suppliers be unable to process date sensitive
information accurately after 1999, the Partnership may be unable to conduct its
normal business operations and to provide its clients with the required
services. In addition, the Partnership may incur unanticipated expenses,
regulatory actions, and legal liabilities. The Partnership cannot determine
which risks, if any, are most reasonably likely to occur nor the effects of any
particular failure to be Year 2000 compliant.
Readers are cautioned that forward-looking statements contained in
"Year 2000" should be read in conjunction with the disclosure set forth under
"Forward-Looking Statements." To the fullest extent permitted by law, the
foregoing Year 2000 discussion is a "Year 2000 Readiness Disclosure" within the
meaning of The Year 2000 Information and Readiness Disclosure Act, 15 U.S.C.
Sec. 1 (1998).
Commitments and Contingencies
The Partnership's capital commitments, which consist primarily of operating
leases for office space are generally funded from future operating cash flows.
On July 25, 1995, a Consolidated and Supplemental Class Action
Complaint ("Original Complaint") was filed against Alliance North American
Government Income Trust, Inc. (the "Fund"), the Partnership and certain other
defendants affiliated with the Partnership alleging violations of federal
securities laws, fraud and breach of fiduciary duty in connection with the
Fund's investments in Mexican and Argentine securities. On September 26, 1996,
the United States District Court for the Southern District of New York granted
the defendants' motion to dismiss all counts of the Original Complaint. On
October 29, 1997, the United States Court of Appeals for the Second Circuit
affirmed that decision.
On October 29, 1996, plaintiffs filed a motion for leave to file an
amended complaint. The principal allegations of the proposed amended complaint
are that (i) the Fund failed to hedge against currency risk despite
representations that it would do so, (ii) the Fund did not properly disclose
that it planned to invest in mortgage-backed derivative securities, and (iii)
two advertisements used by the Fund misrepresented the risks of investing in the
Fund. On October 15, 1998, the United States Court of Appeals for the Second
Circuit issued an order granting plaintiffs' motion to file an amended complaint
alleging that the Fund misrepresented its ability to hedge against currency risk
and denying plaintiffs' motion to file an amended complaint alleging that the
Fund did not properly disclose that it planned to invest in mortgaged-backed
derivative securities and that certain advertisements used by the Fund
misrepresented the risks of investing in the Fund.
The Partnership believes that the allegations in the proposed amended
complaint are without merit and intends to vigorously defend against this
action. While the ultimate outcome of this matter cannot be determined at this
time, management of the Partnership does not expect that it will have a material
adverse effect on the Partnership's results of operations or financial
condition.
54 Alliance Capital
<PAGE>
Changes in Accounting Principles
On January 1, 1998, the Partnership adopted Statement of Financial Accounting
Standards No. 130 ("SFAS 130"), "Reporting Comprehensive Income" which
establishes the disclosure requirements for reporting comprehensive income in an
entity's financial statements. Total comprehensive income is reported in the
Consolidated Statements of Changes in Partners' Capital and Comprehensive Income
and includes net income, unrealized gains and losses on investments classified
as available-for-sale, and foreign currency translation adjustments. The
accumulated balance of comprehensive income items is displayed separately in the
partners' capital section of the Consolidated Statements of Financial Condition.
The Partnership adopted Statement of Financial Accounting Standards No.
131 ("SFAS 131"), "Disclosures about Segments of an Enterprise and Related
Information" in its 1998 consolidated financial statements. SFAS 131 establishes
standards for the way a public enterprise reports information about operating
segments in its annual and interim financial statements. It also establishes
standards for related enterprise-wide disclosures about products and services,
geographic areas and major customers. Generally, financial information is
required to be reported on a basis used by management to allocate resources and
assess performance. Management of the Partnership has assessed the requirements
of SFAS 131 and determined, because it utilizes a consolidated approach to
assess performance and allocate resources, that the Partnership has only one
operating segment.
In March 1998, the AICPA issued Statement of Position 98-1 ("SOP
98-1"), "Accounting for the Costs of Computer Software Developed or Obtained for
Internal Use." The Partnership adopted the provisions of SOP 98-1 effective
January 1, 1998. SOP 98-1 requires capitalization of external and certain
internal costs incurred to obtain or develop internal-use computer software
during the application development stage. Capitalized internal-use software is
amortized on a straight-line basis over the lesser of the estimated useful life
of the software or six years. The adoption of SOP 98-1 did not have a material
impact on the Partnership's consolidated financial statements.
In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standard No. 133, ("SFAS 133") "Accounting for
Derivative Instruments and Hedging Activities." Under this Statement, an entity
is required to recognize derivative instruments as either assets or liabilities
in the statement of financial position and measure those instruments at fair
value. In addition, any entity that elects to apply hedge accounting is required
to establish at the inception of the hedge, the method it will use for assessing
effectiveness of the hedging derivative and the measurement approach for
determining the ineffective aspect of the hedge. This Statement is effective for
all fiscal quarters of fiscal years beginning after June 15, 1999. Management of
the Partnership does not believe that the adoption of the Statement will have a
material effect on its results of operations, liquidity, or capital resources.
1998 Annual Report 55
<PAGE>
Cash Distributions
The Partnership is required to distribute all of its Available Cash Flow, as
defined in the Partnership Agreement, to the General Partner and Unitholders.
The Partnership's Available Cash Flow and Distributions per Unit for the years
ended December 31, 1998, 1997 and 1996 were as follows:
Available Cash Flow:
<TABLE>
<CAPTION>
1998 1997 1996
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Available Cash Flow (in thousands) $278,363 $238,571 $184,546
Distributions per Unit $1.62 $1.40 $1.095
================================================================================================
</TABLE>
Market Risk, Risk Management and Derivative Financial Instruments
The Partnership's investments consist of investments, available-for-sale, and
other investments. Investments, available-for-sale include equity and fixed
income mutual funds and money market investments. The carrying value of the
money market investments approximates fair value. Although investments,
available-for-sale, are purchased for long-term investment, the portfolio
strategy considers them available-for-sale from time-to-time due to changes in
market interest rates, equity prices and other relevant factors. Other
investments include investments in the Partnership's hedge funds.
Non Trading Market Risk Sensitive Instruments
Assets with Interest Rate Risk - Fair Value
The table below provides the Partnership's potential exposure, measured in terms
of fair value, to an immediate 100 basis point increase in interest rates from
the levels prevailing at December 31, 1998. A 100 basis point fluctuation in
interest rates is a hypothetical rate scenario used to calibrate potential risk
and does not represent management's view of future market changes. While these
fair value measurements provide a representation of interest rate sensitivity of
fixed income mutual funds and fixed hedge funds, they are based on the portfolio
exposures at a particular point in time and may not be representative of future
market results. These exposures will change as a result of ongoing changes in
investments in response to the Partnership's management assessment of changing
market conditions and available investment opportunities (in thousands):
<TABLE>
<CAPTION>
AT DECEMBER 31, +100 BASIS
1998 POINT CHANGE
- ------------------------------------------------------------------------------------------------------
<S> <C> <C>
Fixed income investments $4,992 $(225)
======================================================================================================
</TABLE>
Assets with Equity Price Risk - Fair Value
The Partnership's investments also include investments in equity mutual funds
and equity hedge funds. The following table provides the Partnership's potential
exposure from those investments, measured in terms of fair value, to an
immediate 10% drop in equity prices from those prevailing at December 31, 1998.
A 10% decrease in equity prices is a hypothetical scenario used to calibrate
potential risk and does not represent management's view of future market
56 Alliance Capital
<PAGE>
changes. While these fair value measurements provide a representation of equity
price sensitivity of equity mutual funds, they are based on the portfolio
exposures at a particular point in time and may not be representative of future
market results. These exposures will change as a result of ongoing portfolio
activities in response to the Partnership's management assessment of changing
market conditions and available investment opportunities (in thousands):
<TABLE>
<CAPTION>
AT DECEMBER 31, -10% EQUITY
1998 PRICE CHANGE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Equity investments $23,999 $(2,399)
==================================================================================================================
</TABLE>
Derivative Financial Instruments
The Partnership utilizes an interest rate cap to reduce the Partnership's
exposure to interest rate risk by effectively placing an interest rate ceiling
or "cap" on interest payable on up to $100 million of the debt outstanding under
the Partnership's commercial paper program and revolving credit facility. The
$100 million notional principal amount does not represent the Partnership's
exposure to credit risk, but is only a basis to determine the payment obligation
of the counterparty. During the term of the interest rate cap, the Partnership
will receive monthly payments from the counterparty based on the excess, if any,
of the stated reference rate over 6% times the notional amount. Should the
counterparty fail to perform its obligations under the agreement, the
Partnership's borrowing costs on the first $100 million debt outstanding could
exceed 6%. However, at this time the Partnership does not have any reason to
believe that the counterparty would fail to perform. While the notional amount
is the most commonly used measure of volume in the derivatives market, it is not
used by the Partnership as a measure of risk as the notional amount exceeds the
possible loss that could arise from the interest rate cap. Mark to market
exposure is a point-in-time measure of the value of a derivative contract on the
open market. A positive value indicates existence of credit risk for the
Partnership as the counterparty would owe money to the Partnership if the
contract were closed. At year end 1998, the market value of the Partnership's
derivative was $536,000 primarily representing the time value component of the
fair value. The table below provides the interest rate sensitivity of the
interest rate cap. These exposures will change as a result of ongoing portfolio
and risk management activities (in thousands, except for term):
<TABLE>
<CAPTION>
FAIR VALUE
NOTIONAL TERM/ -100 BASIS AT DECEMBER 31, + 100 BASIS
AMOUNT YEARS POINT CHANGE 1998 POINT CHANGE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Interest rate cap $100,000 3 $(316) $536 $809
============================================================================================================================
</TABLE>
Debt - Fair Value
At year end 1998, the aggregate fair value of long-term debt issued by the
Partnership was $11.3 million. The table below provides the potential fair value
exposure to an immediate 100 basis point decrease in interest rates from those
prevailing at year end 1998 (in thousands):
<TABLE>
<CAPTION>
AT DECEMBER 31, -100 BASIS
1998 POINT CHANGE
- ---------------------------------------------------------------------------------------------
<S> <C> <C>
Long-term debt $11,335 $500
=============================================================================================
</TABLE>
1998 Annual Report 57
<PAGE>
Forward-Looking Statements
Certain statements provided by the Partnership in this report are
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. Such forward-looking statements are subject to
risks, uncertainties and other factors which could cause actual results to
differ materially from future results expressed or implied by such
forward-looking statements. The most significant of such factors include, but
are not limited to, the following: the performance of financial markets, the
investment performance of the Partnership's sponsored investment products and
separately managed accounts, general economic conditions, future acquisitions,
competitive conditions, government regulations, including changes in tax rates,
and the risks associated with Year 2000 issues. The Year 2000 issues include
uncertainties regarding among other things, the inability to locate, correct and
successfully test all relevant computer code, the continued availability of
certain resources including personnel and timely and accurate responses and
corrections by third parties. These uncertainties may result in unanticipated
costs associated with Year 2000 issues and failure to meet schedules for Year
2000 compliance. The Partnership cautions readers to carefully consider such
factors. Further, such forward-looking statements speak only as of the date on
which such statements are made; the Partnership undertakes no obligation to
update any forward-looking statements to reflect events or circumstances after
the date of such statements.
58 Alliance Capital
<PAGE>
Consolidated Statements of Financial Condition
(In thousands)
<TABLE>
<CAPTION>
DECEMBER 31,
1998 1997
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Assets
Cash and cash equivalents $ 75,186 $ 63,761
Receivable from brokers and dealers for sale of shares
of Alliance mutual funds 159,095 68,701
Fees receivable:
Alliance mutual funds 80,167 57,583
Separately managed accounts:
Affiliated clients 6,682 8,357
Third party clients 86,166 73,774
Investments, available-for-sale 94,743 47,097
Furniture, equipment and leasehold improvements, net 96,401 80,477
Intangible assets, net 102,001 97,398
Deferred sales commissions, net 375,293 251,632
Other assets 56,858 35,680
- ---------------------------------------------------------------------------------------------------------------------------
Total assets $1,132,592 $784,460
===========================================================================================================================
Liabilities and Partners' Capital
Liabilities:
Payable to Alliance mutual funds for share purchases $ 199,316 $ 96,995
Accounts payable and accrued expenses 202,980 119,887
Accrued compensation and benefits 106,929 74,880
Debt 190,210 90,416
Minority interests in consolidated subsidiaries 2,884 4,231
- ---------------------------------------------------------------------------------------------------------------------------
Total liabilities 702,319 386,409
- ---------------------------------------------------------------------------------------------------------------------------
Commitments and contingencies
Partners' Capital:
General Partner 4,617 4,327
Limited partners; 170,365,963 Units issued and outstanding and
168,976,076 Units issued and outstanding, including Class A
Limited Partnership Interest 457,010 428,353
- ---------------------------------------------------------------------------------------------------------------------------
461,627 432,680
Less: Capital contributions receivable from General Partner 30,519 29,123
Deferred compensation expense 500 3,500
Accumulated other comprehensive income 335 2,006
- ---------------------------------------------------------------------------------------------------------------------------
Total partners' capital 430,273 398,051
- ---------------------------------------------------------------------------------------------------------------------------
Total liabilities and partners' capital $1,132,592 $784,460
===========================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
1998 Annual Report 59
<PAGE>
Consolidated Statements of Income
(In thousands, except per Unit amounts)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenues:
Investment advisory and services fees:
Alliance mutual funds $ 588,396 $384,759 $291,601
Separately managed accounts:
Affiliated clients 58,051 52,930 44,901
Third party clients 306,545 261,290 227,530
Distribution revenues 301,846 216,851 169,071
Shareholder servicing fees 43,475 36,327 31,272
Other revenues 25,743 23,179 24,142
- ---------------------------------------------------------------------------------------------------------------------------
1,324,056 975,336 788,517
- ---------------------------------------------------------------------------------------------------------------------------
Expenses:
Employee compensation and benefits 340,923 264,251 214,880
Promotion and servicing:
Distribution plan payments to financial intermediaries:
Affiliated 82,444 56,118 30,533
Third party 178,643 121,791 115,112
Amortization of deferred sales commissions 108,853 73,841 53,144
Other 90,400 60,416 48,868
General and administrative 162,323 120,283 100,854
Interest 7,586 2,968 1,923
Amortization of intangible assets 4,172 7,006 15,613
Reduction in recorded value of intangible assets -- 120,900 --
- ---------------------------------------------------------------------------------------------------------------------------
975,344 827,574 580,927
- ---------------------------------------------------------------------------------------------------------------------------
Income before income taxes 348,712 147,762 207,590
Income taxes 55,796 18,806 14,244
- ---------------------------------------------------------------------------------------------------------------------------
Net income $ 292,916 $128,956 $193,346
===========================================================================================================================
Net income per Unit:
Basic $1.71 $0.76 $1.15
Diluted $1.66 $0.74 $1.13
===========================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
60 Alliance Capital
<PAGE>
Consolidated Statements of Changes in Partners' Capital and Comprehensive Income
(In thousands)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
ACCUMULATED
GENERAL LIMITED CAPITAL DEFERRED OTHER TOTAL
PARTNER'S PARTNERS' CONTRIBUTIONS COMPENSATION COMPREHENSIVE PARTNERS'
CAPITAL CAPITAL RECEIVABLE EXPENSE INCOME CAPITAL
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1995 $4,416 $437,182 $(25,396) $(9,500) $ 7 $406,709
Comprehensive Income:
Net income 1,933 191,413 193,346
Other comprehensive income:
Unrealized gain on investments, net 389 389
Foreign currency translation
adjustment, net (791) (791)
- -----------------------------------------------------------------------------------------------------------------------------
Comprehensive Income 1,933 191,413 (402) 192,944
- -----------------------------------------------------------------------------------------------------------------------------
Cash distributions to partners
($1.05 per Unit) (1,755) (173,779) (175,534)
Amortization of deferred compensation
expense 3,000 3,000
Capital contributions from General Partner 774 774
Compensation plan accrual 33 3,249 (3,282) --
Issuance of Units for acquisition 427 42,279 42,706
Proceeds from Unit options exercised 54 5,367 5,421
- -----------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1996 5,108 505,711 (27,904) (6,500) (395) 476,020
- -----------------------------------------------------------------------------------------------------------------------------
Comprehensive Income:
Net income 1,290 127,666 128,956
Other comprehensive income:
Unrealized gain on investments, net 458 458
Foreign currency translation
adjustment, net (2,069) (2,069)
- -----------------------------------------------------------------------------------------------------------------------------
Comprehensive Income 1,290 127,666 (1,611) 127,345
- -----------------------------------------------------------------------------------------------------------------------------
Cash distributions to partners
($1.285 per Unit) (2,186) (216,418) (218,604)
Amortization of deferred compensation
expense 3,000 3,000
Capital contributions from General Partner 761 761
Compensation plan accrual 20 1,960 (1,980) --
Proceeds from Unit options exercised 95 9,434 9,529
- -----------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1997 4,327 428,353 (29,123) (3,500) (2,006) 398,051
- -----------------------------------------------------------------------------------------------------------------------------
Comprehensive Income:
Net income 2,929 289,987 292,916
Other comprehensive income:
Unrealized gain on investments, net 837 837
Foreign currency translation
adjustment, net 834 834
- -----------------------------------------------------------------------------------------------------------------------------
Comprehensive Income 2,929 289,987 1,671 294,587
- -----------------------------------------------------------------------------------------------------------------------------
Cash distributions to partners
($1.60 per Unit) (2,744) (271,700) (274,444)
Amortization of deferred compensation
expense 3,000 3,000
Capital contributions from General Partner 716 716
Compensation plan accrual 21 2,091 (2,112) --
Proceeds from Unit options exercised 84 8,279 8,363
- -----------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1998 $4,617 $457,010 $(30,519) $ (500) $ (335) $430,273
=============================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
1998 Annual Report 61
<PAGE>
Consolidated Statements of Cash Flows
(In thousands)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $292,916 $128,956 $193,346
Adjustments to reconcile net income to net cash provided from
operating activities:
Amortization and depreciation 129,374 92,773 76,893
Reduction in recorded value of intangible assets -- 120,900 --
Other, net 12,873 6,570 8,395
Changes in assets and liabilities:
(Increase) in receivable from brokers and dealers for sale of shares
of Alliance mutual funds (90,389) (37,725) (4,325)
(Increase) in fees receivable from Alliance mutual funds (22,302) (11,125) (9,119)
(Increase) decrease in fees receivable from affiliated clients 1,675 (3,878) (2,473)
(Increase) in fees receivable from third party clients (11,772) (15,612) (190)
(Increase) in deferred sales commissions (232,514) (150,301) (78,733)
(Increase) decrease in other assets (25,374) (11,328) 3,262
Increase in payable to Alliance mutual funds for share purchases 102,321 41,481 10,251
Increase in accounts payable and accrued expenses 73,583 20,584 23,654
Increase in accrued compensation and benefits,
less deferred compensation 27,634 14,342 3,269
- ---------------------------------------------------------------------------------------------------------------------------
Net cash provided from operating activities 258,025 195,637 224,230
- ---------------------------------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Purchase of investments (476,826) (516,720) (132,008)
Proceeds from sale of investments 430,266 506,116 131,585
Purchase of businesses, net of cash acquired (2,911) -- (99,427)
Additions to furniture, equipment and leasehold improvements, net (31,910) (35,341) (21,157)
- ---------------------------------------------------------------------------------------------------------------------------
Net cash used in investing activities (81,381) (45,945) (121,007)
- ---------------------------------------------------------------------------------------------------------------------------
Cash flows from financing activities:
Proceeds from issuance of debt 926,012 126,863 --
Repayment of debt (826,375) (60,451) (65)
Cash distributions to partners (274,444) (218,604) (175,534)
Capital contributions from General Partner 716 761 774
Proceeds from Unit options exercised 8,363 9,529 5,421
- ---------------------------------------------------------------------------------------------------------------------------
Net cash used in financing activities (165,728) (141,902) (169,404)
- ---------------------------------------------------------------------------------------------------------------------------
Effect of exchange rate changes on cash and cash equivalents 509 (1,470) (634)
- ---------------------------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents 11,425 6,320 (66,815)
Cash and cash equivalents at beginning of the year 63,761 57,441 124,256
- ---------------------------------------------------------------------------------------------------------------------------
Cash and cash equivalents at end of the year $ 75,186 $ 63,761 $ 57,441
===========================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
62 Alliance Capital
<PAGE>
Notes to Consolidated Financial Statements
1. Organization
Alliance Capital Management L.P. (the "Partnership") and its consolidated
subsidiaries provide diversified investment management and related services to a
broad range of clients including unaffiliated separately managed accounts, The
Equitable Life Assurance Society of the United States ("ELAS"), a wholly-owned
subsidiary of The Equitable Companies Incorporated ("Equitable"), and certain of
their subsidiaries and affiliates and, through mutual funds and various other
investment vehicles, to individual investors. Separately managed accounts
consist primarily of the active management of equity and fixed income portfolios
for institutional investors. Separately managed accounts include corporate and
public employee pension funds, the general and separate accounts of ELAS and its
insurance company subsidiaries, endowment funds, and the assets of other
domestic and foreign institutions. The Partnership provides investment
management, distribution, and shareholder and administrative services to its
sponsored mutual funds and cash management products, including money market
funds, deposit accounts, certain structured products and hedge funds ("Alliance
mutual funds").
The Partnership is a registered investment adviser under the Investment
Advisers Act of 1940. Alliance Capital Management Corporation ("Alliance"), an
indirect wholly-owned subsidiary of Equitable, owns a 1% general partnership
interest in the Partnership. At December 31, 1998, Equitable was the beneficial
owner of approximately 56.7% of units representing assignments of beneficial
ownership of limited partnership interests ("Units").
2. Summary of Significant Accounting Policies
Basis of Presentation
The Partnership's consolidated financial statements have been prepared in
accordance with generally accepted accounting principles. The preparation of the
financial statements in conformity with generally accepted accounting principles
requires management of the Partnership to make certain estimates and assumptions
that affect the reported amounts of assets and liabilities, disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting periods.
Actual results could differ from those estimates.
Principles of Consolidation
The consolidated financial statements include the Partnership and its
majority-owned subsidiaries. The equity method of accounting is used for
unconsolidated subsidiaries in which the Partnership's ownership interests range
from 20 to 50 percent and the Partnership exercises significant influence over
operating and financial policies. All significant intercompany transactions and
balances among the consolidated entities have been eliminated.
Cash and Cash Equivalents
Cash and cash equivalents include cash on hand, demand deposits and highly
liquid investments with maturities of three months or less. Due to the
short-term nature of these investments, the recorded value approximates fair
value.
1998 Annual Report 63
<PAGE>
Investments
The Partnership's investments, principally investments in Alliance mutual funds,
are classified as available-for-sale securities. These investments are stated at
fair value with unrealized gains and losses reported as a separate component of
accumulated other comprehensive income in partners' capital. Realized gains and
losses on the sale of investments are included in income currently and are
determined using the specific-identification method.
Furniture, Equipment and Leasehold Improvements
Furniture, equipment and leasehold improvements are stated at cost, less
accumulated depreciation and amortization. Depreciation is recognized on a
straight-line basis over the estimated useful lives of eight years for furniture
and three to six years for equipment. Leasehold improvements are amortized on a
straight-line basis over the lesser of their estimated useful lives or the terms
of the related leases.
Intangible Assets
Intangible assets consist principally of goodwill resulting from acquisitions
and costs assigned to contracts of businesses acquired. Goodwill is being
amortized on a straight-line basis over estimated useful lives ranging from
twelve to forty years. Costs assigned to investment contracts of businesses
acquired are being amortized on a straight-line basis over the estimated useful
lives of twenty years. The Partnership evaluates impairment of its intangible
assets by comparing the undiscounted cash flows expected to be realized from
those intangible assets to their recorded values, pursuant to Statement of
Financial Accounting Standards No. 121 ("SFAS 121") "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of." If
the expected future cash flows are less than the carrying value of intangible
assets, the Partnership recognizes an impairment loss for the difference between
the carrying amount and the estimated fair value of those intangible assets.
Deferred Sales Commissions
Sales commissions paid to financial intermediaries in connection with the sale
of shares of open-end Alliance mutual funds sold without a front-end sales
charge are capitalized and amortized over periods not exceeding five and
one-half years, the period of time estimated by management of the Partnership
during which deferred sales commissions are expected to be recovered from
distribution plan payments received from those funds and from contingent
deferred sales charges received from shareholders of those funds upon the
redemption of their shares. Contingent deferred sales charges reduce unamortized
deferred sales commissions when received.
Derivative Financial Instruments
The Partnership uses derivative financial instruments to manage its exposure to
adverse movements in interest rates. Payments to be received as a result of
interest rate cap agreements are recognized as adjustments to interest expense.
Premiums paid are included in other assets and amortized to interest expense
over the period for which the cap is effective.
64 Alliance Capital
<PAGE>
Revenue Recognition and Mutual Fund Underwriting Activities
Investment advisory and services fees are recorded as revenue as the related
services are performed. Purchases and sales of shares of Alliance mutual funds
in connection with the underwriting activities of the Partnership's
subsidiaries, including related commission income, are recorded on trade date.
Receivables from brokers and dealers for sale of shares of Alliance mutual funds
are generally realized within three business days from trade date, in
conjunction with the settlement of the related payables to Alliance mutual funds
for share purchases.
Unit Option Plans
The Partnership applies the provisions of Accounting Principles Board No. 25
("APB 25") "Accounting for Stock Issued to Employees" under which compensation
expense is recorded on the date of grant only if the market price of the
underlying Units exceeds the exercise price. Statement of Financial Accounting
Standards No. 123 ("SFAS 123") "Accounting for Stock-Based Compensation" permits
entities to recognize the fair value of all stock-based awards on the date of
grant as expense over the vesting period or, alternatively, to continue to apply
the provisions of APB 25 and provide pro forma net income and pro forma earnings
per Unit for employee stock option grants made in 1995 and future years as if
the fair-value method defined in SFAS 123 had been applied. The Partnership has
elected to continue to apply the provisions of APB 25 and to provide the pro
forma disclosure provisions of SFAS 123.
Pension and Other Post-retirement Plans
On January 1, 1998, the Partnership adopted Statement of Financial Accounting
Standards No. 132, ("SFAS 132") "Employers' Disclosures about Pension and Other
Post-retirement Benefits," which revises employers' disclosures about pension
and other post-retirement benefit plans. SFAS No. 132 does not change the method
of accounting for such plans.
Advertising
Advertising costs are expensed as incurred and are included in other promotion
and servicing expenses.
Foreign Currency Translation
Assets and liabilities of foreign subsidiaries are translated into United States
dollars at exchange rates in effect at the balance sheet dates, and related
revenues and expenses are translated into United States dollars at average
exchange rates in effect during each period. Net foreign currency gains and
losses resulting from the translation of assets and liabilities of foreign
operations into United States dollars are reported as a separate component of
accumulated other comprehensive income in partners' capital. Net foreign
currency gains and losses for the three-year period ended December 31, 1998 were
not material.
Cash Distributions to Partners
The Partnership is required to distribute all of its Available Cash Flow, as
defined in its Partnership Agreement, to the General Partner and Unitholders.
1998 Annual Report 65
<PAGE>
Comprehensive Income
On January 1, 1998, the Partnership adopted Statement of Financial Accounting
Standards No. 130 ("SFAS 130"), "Reporting Comprehensive Income" which
establishes the disclosure requirements for reporting comprehensive income in an
entity's financial statements. Total comprehensive income is reported in the
Consolidated Statements of Changes in Partners' Capital and Comprehensive Income
and includes net income, unrealized gains and losses on investments classified
as available-for-sale, and foreign currency translation adjustments. The
accumulated balance of comprehensive income items is displayed separately in the
partners' capital section of the Consolidated Statements of Financial Condition.
Prior year financial statements have been reclassified to conform to the
requirements of SFAS 130.
Reclassifications
Certain amounts in the 1997 and 1996 financial statements have been reclassified
to conform with the 1998 presentation.
3. Acquisitions
On December 22, 1998, the Partnership acquired Whittingdale Holdings Limited
("Whittingdale") for approximately $10.2 million. The purchase price consists of
an initial payment of $4.8 million in cash and two deferred payments estimated
at $5.4 million in the aggregate payable on February 15, 2000 and 2001. The
amounts of the deferred payments are based upon certain revenue levels. Accounts
payable and accrued expenses at December 31, 1998 included $5.4 million
representing the estimated amount of the deferred payments. The Partnership also
has agreed to pay up to $6.7 million to the former owner of Whittingdale. The
amount of this payment is based upon revenues in the year 2003 and will be
expensed if and when incurred.
The acquisition was accounted for under the purchase method with the
results of Whittingdale included in the Partnership's consolidated financial
statements from the acquisition date. The excess of the purchase price over the
fair value of net assets acquired resulted in the recognition of goodwill of
approximately $8.8 million which is being amortized over twenty years. Pro forma
financial information for the year ended December 31, 1998, reflecting the
effects of the acquisition, is not presented because it would not be materially
different from the actual results reported.
On February 29, 1996, the Partnership acquired substantially all of the
assets and liabilities of Cursitor Holdings, L.P. ("CHLP") and all of the
outstanding shares of Cursitor Holdings Limited, currently Cursitor Alliance
Holdings Limited, (collectively, "Cursitor") for approximately $159.0 million.
The acquisition of Cursitor, which was accounted for pursuant to the purchase
method, resulted in the formation of a new subsidiary of the Partnership,
Cursitor Alliance LLC ("Cursitor Alliance"), in which CHLP owns a 7% minority
equity interest which the Partnership has an option to purchase (See Note 11).
During the second quarter of 1997, management of the Partnership
determined that the value of the intangible assets recorded in connection with
the 1996 acquisition of Cursitor was impaired and reduced this unamortized value
by $120.9 million to estimated fair value.
66 Alliance Capital
<PAGE>
4. Class A Limited Partnership Interest
In connection with the purchase in July 1993 of the business of Equitable
Capital Management Corporation ("ECMC"), a wholly-owned subsidiary of ELAS, the
Partnership issued a newly created Class A Limited Partnership Interest ("Class
A Interest") convertible initially into 200,000 Units. Since 1993, the Units
issuable upon conversion of the Class A Interest were increased to 1,537,905
Units to reflect the receipt by the Partnership of certain performance fees
through March 1998. The amount of the increase in 1998 was 435,115 Units. The
Class A Interest was converted into 1,537,905 Units on June 30, 1998 and is no
longer outstanding.
5. Net Income Per Unit
Basic net income per Unit is derived by reducing net income for each year by 1%
for the general partnership interest held by the General Partner and dividing
the remaining 99% by the weighted average number of Units outstanding during
each year, including Units issuable upon conversion of the Class A Limited
Partnership Interest. Diluted net income per Unit is derived by reducing net
income for each year by 1% for the general partnership interest held by the
General Partner and dividing the remaining 99% by the total of the weighted
average number of Units outstanding during each year and the dilutive Unit
equivalents resulting from outstanding employee Unit options.
<TABLE>
<CAPTION>
(In thousands, except per Unit amounts) 1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net income $292,916 $128,956 $193,346
- ---------------------------------------------------------------------------------------------------------------------------
Weighted average Units outstanding - Basic net income per Unit 169,933 168,448 166,382
Dilutive effect of employee Unit options 5,210 3,428 2,586
- ---------------------------------------------------------------------------------------------------------------------------
Weighted average Units outstanding - Diluted net income per Unit 175,143 171,876 168,968
- ---------------------------------------------------------------------------------------------------------------------------
Basic net income per Unit $1.71 $0.76 $1.15
Diluted net income per Unit $1.66 $0.74 $1.13
===========================================================================================================================
</TABLE>
6. Investments
At December 31, 1998 and 1997, the Partnership's investments, principally
investments in Alliance mutual funds, are classified as available-for-sale
securities. The amortized cost, gross unrealized gains and losses and fair value
of investments were as follows (in thousands):
<TABLE>
<CAPTION>
GROSS GROSS
AMORTIZED UNREALIZED UNREALIZED FAIR
COST GAINS LOSSES VALUE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
December 31, 1998 $93,154 $2,169 $(580) $94,743
December 31, 1997 $46,345 $ 914 $(162) $47,097
===========================================================================================================================
</TABLE>
Proceeds from sales of investments were approximately $430,266,000, $506,116,000
and $131,585,000 in 1998, 1997 and 1996, respectively. Gross realized gains of
$23,000, $94,000 and $124,000 and gross realized losses of $0, $25,000 and
$345,000 were realized from the sales for the years ended December 31, 1998,
1997 and 1996, respectively.
1998 Annual Report 67
<PAGE>
7. Furniture, Equipment and Leasehold Improvements
Furniture, equipment and leasehold improvements are comprised of the following
(in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
1998 1997
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Furniture and equipment $ 95,886 $ 75,170
Leasehold improvements 66,954 56,330
- ---------------------------------------------------------------------------------------------------------------------------
162,840 131,500
Less: Accumulated depreciation and amortization 66,439 51,023
- ---------------------------------------------------------------------------------------------------------------------------
Furniture, equipment and leasehold improvements, net $ 96,401 $ 80,477
===========================================================================================================================
</TABLE>
8. Intangible Assets
The following is a summary of intangible assets at December 31, 1998 and 1997
(in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
1998 1997
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Goodwill, net of accumulated amortization of $17,693 and $14,611 in 1998 and 1997, respectively $ 83,276 $77,582
Costs assigned to investment contracts of businesses acquired, net of accumulated amortization
of $88,423 and $87,332 in 1998 and 1997, respectively 18,725 19,816
- ---------------------------------------------------------------------------------------------------------------------------
$102,001 $97,398
===========================================================================================================================
</TABLE>
9. Debt
During 1998, the Partnership entered into a $425.0 million five-year revolving
credit facility with a group of commercial banks which replaced a $250.0 million
revolving credit facility. Under the facility, the interest rate, at the option
of the Partnership, is a floating rate generally based upon a defined prime
rate, a rate related to the London Interbank Offered Rate (LIBOR) or the Federal
Funds rate. A facility fee is payable on the total facility. During 1998, the
Partnership also increased its commercial paper program from $250.0 million to
$425.0 million. Borrowings under the facility and the Partnership's commercial
paper program may not exceed $425.0 million in the aggregate. The revolving
credit facility will be used to provide back-up liquidity for the Partnership's
commercial paper program, to fund commission payments to financial
intermediaries for the sale of back-end load shares under the Partnership's
mutual fund distribution system, and for general working capital purposes. At
December 31, 1998 and 1997, the Partnership had $180.0 million and $72.0 million
principal amount of commercial paper outstanding, respectively, at effective
interest rates of 5.5% and 6.2%, respectively. There were no borrowings
outstanding under the Partnership's revolving credit facility on these dates.
The recorded amount of outstanding commercial paper approximates fair value.
The new revolving credit facility contains covenants which among other
things, require the Partnership to meet certain financial ratios. The
Partnership was in compliance with the covenants at December 31, 1998.
Debt also includes notes issued to CHLP in the aggregate principal
amounts of $10.8 million and $16.1 million at December 31, 1998 and 1997,
respectively. The notes bear interest at 6% per annum and are payable ratably
over the next two years. The recorded amounts of the notes approximate their
fair value. At December 31, 1997, debt also includes promissory notes with
aggregate outstanding principal amounts of $2.4 million issued to certain
investment partnerships for which a subsidiary of the Partnership serves as
general partner. The principal amounts of the promissory notes were reduced to
zero in 1998 as the partners received final distributions from the investment
partnerships.
68 Alliance Capital
<PAGE>
10. Interest Rate Cap Agreement
During the second quarter of 1998, the Partnership entered into a three-year
interest rate cap agreement with a major U.S. commercial bank effective on
December 15, 1998. The sole purpose of this agreement is to reduce the
Partnership's exposure to interest rate risk by effectively placing an interest
rate ceiling or "cap" of 6% per annum on interest payable on up to $100 million
of the debt outstanding under the Partnership's commercial paper program and
revolving credit facility. The fair value of the interest rate cap was
approximately $536,000 at December 31, 1998, while the carrying value of the
unamortized premium was $897,000.
The $100 million notional principal amount does not represent the
Partnership's exposure to credit risk, but is the basis to determine the payment
obligation of the counterparty. During the term of the interest rate cap, the
Partnership will receive monthly payments from the counterparty based on the
excess, if any, of the stated reference rate over 6% times the notional amount.
Should the counterparty fail to perform its obligations under the agreement, the
Partnership's borrowing costs on the first $100 million debt outstanding could
exceed 6%. However, at this time, the Partnership does not have any reason to
believe that the counterparty would fail to perform.
11. Commitments and Contingencies
The Partnership and its subsidiaries lease office space, furniture and office
equipment under various operating leases. The future minimum payments under
noncancelable leases, net of sublease commitments, at December 31, 1998
aggregated $462,901,000 and are payable as follows: $23,821,000, $28,150,000,
$27,157,000, $26,616,000 and $26,680,000 for the years 1999 through 2003,
respectively, and a total of $330,477,000 for the remaining years through 2016.
Office leases contain escalation clauses that provide for the pass through of
increases in operating expenses and real estate taxes. Rent expense for the
years ended December 31, 1998, 1997 and 1996 was $25,062,000, $21,262,000 and
$24,760,000, respectively.
In connection with the Cursitor acquisition, the Partnership obtained
an option to purchase the minority interest held by CHLP in Cursitor Alliance,
and CHLP obtained an option to sell its minority interest to the Partnership for
cash, Units, or a combination thereof with a value of not less than $10.0
million or more than $37.0 million ("Buyout Price"). The Buyout Price will be
determined based on the amount of global asset allocation investment advisory
revenues earned by Cursitor Alliance during a twelve-month period ending on the
February 28th preceding the date either option is exercised. Due to the
continuing decline in Cursitor Alliance revenues, management of the Partnership
believes that the Buyout Price for the minority interest will be $10.0 million,
which will be substantially higher than its fair value. Accordingly, the
Partnership recorded a $10.0 million provision for the Buyout Price in the first
quarter of 1998.
On July 25, 1995, a Consolidated and Supplemental Class Action
Complaint ("Original Complaint") was filed against Alliance North American
Government Income Trust, Inc. (the "Fund"), the Partnership and certain other
defendants affiliated with the Partnership alleging violations of federal
securities laws, fraud and breach of fiduciary duty in connection with the
Fund's investments in Mexican and Argentine securities. On September 26, 1996,
the
1998 Annual Report 69
<PAGE>
United States District Court for the Southern District of New York
granted the defendants' motion to dismiss all counts of the Original Complaint.
On October 29, 1997, the United States Court of Appeals for the Second Circuit
affirmed that decision.
On October 29, 1996, plaintiffs filed a motion for leave to file an
amended complaint. The principal allegations of the proposed amended complaint
are that (i) the Fund failed to hedge against currency risk despite
representations that it would do so, (ii) the Fund did not properly disclose
that it planned to invest in mortgage-backed derivative securities, and (iii)
two advertisements used by the Fund misrepresented the risks of investing in the
Fund. On October 15, 1998, the United States Court of Appeals for the Second
Circuit issued an order granting plaintiffs' motion to file an amended complaint
alleging that the Fund misrepresented its ability to hedge against currency risk
and denying plaintiffs' motion to file an amended complaint alleging that the
Fund did not properly disclose that it planned to invest in mortgaged-backed
derivative securities and that certain advertisements used by the Fund
misrepresented the risks of investing in the Fund.
The Partnership believes that the allegations in the proposed amended
complaint are without merit and intends to vigorously defend against this
action. While the ultimate outcome of this matter cannot be determined at this
time, management of the Partnership does not expect that it will have a material
adverse effect on the Partnership's results of operations or financial
condition.
12. Net Capital
Alliance Fund Distributors, Inc. ("AFD"), a wholly-owned subsidiary of the
Partnership, serves as distributor and/or underwriter for certain Alliance
mutual funds. AFD is registered as a broker-dealer under the Securities Exchange
Act of 1934 and is subject to the minimum net capital requirements imposed by
the Securities and Exchange Commission. AFD's net capital at December 31, 1998
was $15,660,000, which was $9,296,000 in excess of its required net capital of
$6,364,000.
13. Employee Benefit Plans
The Partnership and its subsidiaries maintain a number of qualified and
nonqualified employee benefit and incentive compensation plans. Except as
indicated, the aggregate amount available for annual employee bonuses and
contributions to the various employee benefit plans discussed below is based on
a percentage of the consolidated operating profits of the Partnership and its
subsidiaries.
The Partnership maintains a qualified profit sharing plan covering
substantially all U.S. and certain foreign employees. The amount of the annual
contribution to the plan is determined by a committee of the Board of Directors
of the General Partner. Contributions are limited to the maximum amount
deductible for Federal income tax purposes, generally 15% of the total annual
compensation of eligible participants. Aggregate contributions for 1998, 1997
and 1996 were $10,049,000, $8,744,000 and $8,310,000, respectively.
The Partnership maintains a qualified noncontributory defined benefit
retirement plan in the U.S. covering substantially all U.S. employees and
certain foreign employees. Benefits are based on years of credited service,
average
70 Alliance Capital
<PAGE>
final base salary and primary Social Security benefits. The Partnership's
funding policy is to contribute annually an amount not to exceed the maximum
amount that can be deducted for Federal income tax purposes. Plan assets are
comprised principally of corporate equity securities, U.S. Treasury securities
and shares of Alliance mutual funds.
The Plan's projected benefit obligation under the retirement plan at
December 31, 1998 and 1997 was comprised of (in thousands):
<TABLE>
<CAPTION>
1998 1997
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Benefit obligation at beginning of year $26,169 $19,332
Service cost 2,769 2,143
Interest cost 1,891 1,600
Actuarial gains/losses 3,313 3,463
Benefits paid (661) (369)
- ---------------------------------------------------------------------------------------------------------------------------
Benefit obligation at end of year $33,481 $26,169
===========================================================================================================================
</TABLE>
The plan assets at fair value for the years ended December 31, 1998 and
1997 were comprised of (in thousands):
<TABLE>
<CAPTION>
1998 1997
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Plan assets at fair value at beginning of year $24,300 $20,035
Actual return on plan assets 8,605 4,634
Benefits paid (661) (369)
- ---------------------------------------------------------------------------------------------------------------------------
Plan assets at fair value at end of year $32,244 $24,300
===========================================================================================================================
</TABLE>
The following table presents the retirement plan's funded status and
amounts recognized in the Partnership's consolidated statements of financial
condition at December 31, 1998 and 1997 (in thousands):
<TABLE>
<CAPTION>
1998 1997
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Funded status $(1,237) $(1,869)
Unrecognized net gain from past experience different from that assumed and effects of
changes in assumptions (5,139) (2,254)
Prior service cost not yet recognized in net periodic pension cost (1,421) (1,535)
Unrecognized net plan assets at January 1, 1987 being recognized over 26.3 years (2,049) (2,192)
- ---------------------------------------------------------------------------------------------------------------------------
Accrued pension expense included in accrued compensation and benefits $(9,846) $(7,850)
===========================================================================================================================
</TABLE>
Net expense under the retirement plan for the years ended December 31,
1998, 1997 and 1996 was comprised of (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Service cost $ 2,769 $ 2,143 $ 2,317
Interest cost on projected benefit obligations 1,891 1,600 1,405
Expected return on plan assets (2,393) (1,995) (1,842)
Net amortization and deferral (271) (272) (256)
- ---------------------------------------------------------------------------------------------------------------------------
Net pension charge $ 1,996 $ 1,476 $ 1,624
===========================================================================================================================
</TABLE>
1998 Annual Report 71
<PAGE>
Actuarial computations at December 31, 1998, 1997 and 1996 were made
utilizing the following assumptions:
<TABLE>
<CAPTION>
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Discount rate on benefit obligations 7.00% 7.50% 8.00%
Expected long-term rate of return on plan assets 10.00% 10.00% 10.00%
Annual salary increases 5.66% 5.50% 5.50%
===========================================================================================================================
</TABLE>
Variances between actuarial assumptions and actual experience are
amortized over the estimated average remaining service lives of employees in the
retirement plan.
The Partnership maintains a nonqualified unfunded deferred compensation
plan known as the Capital Accumulation Plan and assumed obligations under
contractual unfunded deferred compensation arrangements covering certain
executives which are not funded from the incentive compensation pool.
The Capital Accumulation Plan was frozen on December 31, 1987 and no
additional awards have been made. The Board of Directors of the General Partner
may terminate the Capital Accumulation Plan at any time without cause, in which
case the Partnership's liability would be limited to benefits that have vested.
Benefits due eligible executives under the contractual unfunded deferred
compensation arrangements vested on or before December 31, 1987. Payment of
vested benefits under both the Capital Accumulation Plan and the contractual
unfunded deferred compensation arrangements will generally be made over a
ten-year period commencing at retirement age. ACMC, Inc., a subsidiary of
Equitable, is obligated to make capital contributions to the Partnership in
amounts equal to benefits paid under the Capital Accumulation Plan and the
contractual unfunded deferred compensation arrangements. Amounts included in
employee compensation and benefits expense for the Capital Accumulation Plan and
the contractual unfunded deferred compensation arrangements for the years ended
December 31, 1998, 1997 and 1996 were $2,112,000, $1,980,000 and $3,282,000,
respectively.
During 1995, the Partnership established an unfunded deferred
compensation plan known as the Alliance Partners Compensation Plan (the "Plan")
under which certain awards may be granted to eligible executives. A committee
comprised of certain executive officers of the General Partner administers the
Plan and determines the aggregate amount and recipients of awards. Awards made
in 1995 vest ratably over three years. Awards made after 1995 vest ratably over
eight years. Until distributed, the awards are generally credited with earnings
based on the Partnership's earnings growth rate. Payment of vested benefits will
generally be made over a five-year period commencing at retirement although,
under certain circumstances, full or partial lump sum payments may be made upon
termination of employment. The Plan may be terminated at any time without cause,
in which case the Partnership's liability would be limited to vested benefits.
The Partnership made awards in 1998, 1997 and 1996 aggregating $25,825,000,
$21,725,000 and $12,350,000, respectively. The amounts charged to expense for
the Plan for the years ended December 31, 1998, 1997 and 1996 were $6,587,000,
$9,822,000 and $2,816,000, respectively.
72 Alliance Capital
<PAGE>
During 1994, certain key employees of Shields Asset Management,
Incorporated ("Shields") and its wholly-owned subsidiary, Regent Investor
Services Incorporated ("Regent") entered into employment agreements with the
Partnership and were issued 1,290,320 new Units with an aggregate fair market
value of approximately $15,000,000, which is being amortized as employee
compensation expense ratably over five years. Aggregate amortization of
$3,000,000 was recorded for each of the years ended December 31, 1998, 1997 and
1996.
14. Employee Unit Award and Option Plans
During 1988, a Unit Option Plan ("Unit Option Plan") was established under which
options to purchase up to 9,846,152 Units may be granted to certain key
employees. A committee of the Board of Directors of the General Partner
administers the plan and determines the grantees and the number of options to be
granted. Options may be granted for terms of up to ten years and each option
must have an exercise price of not less than the fair market value of the Units
on the date of grant. Options are exercisable at a rate of 20% of the Units
subject to options on each of the first five anniversary dates of the date of
grant.
During 1993, the 1993 Unit Option Plan, the Unit Bonus Plan and the
Century Club Plan (together the "1993 Plans") were established by the
Partnership. Committees of the Board of Directors of the General Partner
administer the 1993 Plans and determine the recipients of grants and awards.
Under the 1993 Unit Option Plan, options to purchase Units may be granted to key
employees for terms of up to ten years. Each option must have an exercise price
of not less than the fair market value of the Units on the date of grant.
Options are exercisable at a rate of 20% of the Units subject to options on each
of the first five anniversary dates of the date of grant. Under the Unit Bonus
Plan, Units may be awarded to key employees in lieu of all or a portion of the
cash bonuses they would otherwise receive under the Partnership's incentive
compensation program. Under the Century Club Plan, employees whose primary
responsibilities are to assist in the distribution of Alliance mutual funds are
eligible to receive an award of Units. The aggregate number of Units that can be
the subject of options granted or that can be awarded under the 1993 Plans may
not exceed 6,400,000 Units. As of December 31, 1998, 5,314,400 Units were
subject to options granted and 292,754 Units were subject to awards made under
the 1993 Plans.
During 1997, the 1997 Long Term Incentive Plan (the "1997 Plan") was
established by the Partnership. Committees of the Board of Directors of the
General Partner administer the 1997 Plan and determine the recipients of Unit
awards, including options, restricted Units and phantom restricted Units,
performance awards, other Unit based awards, or any combination thereof. Awards
under the 1997 Plan may be granted to key employees for terms established at the
time of grant by the Committees. The aggregate number of Units that can be the
subject of options granted or that can be awarded under the 1997 Plan may not
exceed 16,000,000 Units.
During 1998, 1997, and 1996, the Committees authorized the grant of
options to employees of the Partnership to purchase 2,777,000, 2,125,000 and
1,450,000 of the Partnership's Units, respectively, under the Unit Option Plan,
the 1993 Plans and the 1997 Plan. The per Unit weighted-average fair value of
options granted during 1998, 1997 and 1996 was $3.86, $2.18 and $1.35,
respectively, on the date of grant using the Black-Scholes option pricing model
with
1998 Annual Report 73
<PAGE>
the following weighted-average assumptions: risk-free interest rates of 4.4%,
5.7% and 5.8% for 1998, 1997 and 1996, respectively, expected dividend yield of
6.5% for 1998, 8.0% for 1997 and 1996, and a volatility factor of the expected
market price of the Partnership's Units of 29% for 1998, 26% for 1997 and 23%
for 1996.
The Partnership applies APB 25 in accounting for its option plans and,
accordingly, no compensation cost has been recognized for its Unit options in
the consolidated financial statements. Had the Partnership determined
compensation cost based on the fair value at the grant date for its Unit options
under SFAS No. 123, the Partnership's net income and net income per Unit would
have been reduced to the pro forma amounts indicated below (in thousands, except
per Unit amounts):
<TABLE>
<CAPTION>
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Pro forma net income $289,831 $127,367 $191,895
Pro forma basic net income per Unit $1.69 $0.75 $1.14
Pro forma diluted net income per Unit $1.64 $0.73 $1.12
===========================================================================================================================
</TABLE>
Pro forma net income reflects options granted beginning January 1,
1995. Therefore, the full impact of calculating compensation cost for Unit
options under SFAS 123 is not reflected in the pro forma net income amounts
presented above because compensation cost is reflected over the options' vesting
period of five years and compensation cost for options granted prior to January
1, 1995 is not considered.
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options which have no vesting restrictions
and are fully transferable. In addition, option valuation models require the
input of highly subjective assumptions including the expected Unit price
volatility. Because the Partnership's employee Unit options have characteristics
significantly different from those of traded options, and because changes in the
subjective input assumptions can materially affect the fair value estimate, in
management's opinion, the existing model does not necessarily provide a reliable
single measure of the fair value of its Unit options.
The following table summarizes the activity in options under the Unit
Option Plan, 1993 Plans and the 1997 Plan:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
EXERCISE PRICE
UNITS PER UNIT
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Outstanding at January 1, 1996 9,656,200 $ 8.86
Granted 1,450,000 $12.56
Exercised (794,600) $ 6.82
Forfeited (243,400) $ 9.66
- ----------------------------------------------------------------------------------------------------------------------------
Outstanding at December 31, 1996 10,068,200 $ 9.54
Granted 2,125,000 $18.28
Exercised (1,183,800) $ 8.06
Forfeited (371,800) $10.64
- ----------------------------------------------------------------------------------------------------------------------------
Outstanding at December 31, 1997 10,637,600 $11.41
Granted 2,777,000 $26.28
Exercised (938,972) $ 8.91
Forfeited (205,200) $13.14
- ----------------------------------------------------------------------------------------------------------------------------
Outstanding at December 31, 1998 12,270,428 $14.94
============================================================================================================================
Exercisable at December 31, 1998 5,435,428
============================================================================================================================
</TABLE>
74 Alliance Capital
<PAGE>
Exercise prices for options outstanding as of December 31, 1998 ranged
from $3.03 to $26.31 per Unit. The weighted-average remaining contractual life
of those options is 7.2 years.
The following table summarizes information concerning currently
outstanding and exercisable options:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
- ---------------------------------------------------------------------------------------------------------------------------
RANGE OF NUMBER WEIGHTED AVERAGE WEIGHTED NUMBER
EXERCISE OUTSTANDING REMAINING AVERAGE EXERCISABLE WEIGHTED AVERAGE
PRICES AS OF 12/31/98 CONTRACTUAL LIFE EXERCISE PRICE AS OF 12/31/98 EXERCISE PRICE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$ 3.03 - $ 9.69 3,111,428 4.5 $ 8.03 2,413,028 $ 7.57
9.81 - 10.69 2,023,400 5.3 10.05 1,587,800 10.07
11.13 - 13.75 2,371,600 7.5 11.92 1,047,600 11.77
18.47 - 18.78 1,987,000 9.0 18.48 387,000 18.48
22.50 - 26.31 2,777,000 9.9 26.28 -- --
- ---------------------------------------------------------------------------------------------------------------------------
$ 3.03 - $26.31 12,270,428 7.2 $14.94 5,435,428 $ 9.88
===========================================================================================================================
</TABLE>
15. Income Taxes
The Partnership is a publicly traded partnership for federal income tax purposes
and, accordingly, is not subject to federal and state corporate income taxes.
However, the Partnership is subject to the New York City unincorporated business
tax ("UBT") and, effective January 1, 1998, to a 3.5% federal tax on partnership
gross income from the active conduct of a trade or business. Domestic corporate
subsidiaries of the Partnership, which are subject to federal, state and local
income taxes, file a consolidated federal income tax return and separate state
and local income tax returns. Foreign corporate subsidiaries are generally
subject to taxes in the foreign jurisdictions where they are located.
The provision for income taxes, which are all currently payable,
consists of (in thousands):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Partnership unincorporated business taxes $16,047 $11,186 $ 8,182
Federal partnership gross income tax 30,600 -- --
Corporate subsidiaries:
Federal 3,855 4,800 3,800
State, local and foreign 5,294 2,820 2,262
- ---------------------------------------------------------------------------------------------------------------------------
$55,796 $18,806 $14,244
===========================================================================================================================
</TABLE>
The principal reasons for the difference between the Partnership's
effective tax rate and the UBT statutory tax rate of 4% are as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
UBT statutory rate $13,948 4.0% $ 5,910 4.0% $ 8,304 4.0%
Federal partnership gross income tax rate 30,600 8.8 -- -- -- --
Corporate subsidiaries' Federal, state, local
and foreign income taxes 8,878 2.5 7,206 4.9 6,062 2.9
Reduction in recorded value of intangible assets -- -- 4,705 3.2 -- --
Miscellaneous 2,370 0.7 985 0.6 (122) --
- ---------------------------------------------------------------------------------------------------------------------------
$55,796 16.0% $18,806 12.7% $14,244 6.9%
===========================================================================================================================
</TABLE>
1998 Annual Report 75
<PAGE>
Under Statement of Financial Accounting Standards No. 109 ("SFAS 109"),
"Accounting for Income Taxes," deferred income taxes reflect the net tax effect
of temporary differences between the carrying amounts of assets and liabilities
for financial reporting purposes and the amounts used for income tax purposes.
The tax effect of significant items comprising the Partnership's net deferred
tax assets are as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
1998 1997
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Deferred tax asset:
Differences between book and tax treatment of deferred compensation plans $3,287 $2,614
Differences between book and tax basis of intangible assets 1,847 --
Other, primarily accruals deductible when paid 2,056 1,480
- ---------------------------------------------------------------------------------------------------------------------------
7,190 4,094
Deferred tax liability:
Differences between book and tax basis of furniture, equipment and leasehold improvements 290 402
- ---------------------------------------------------------------------------------------------------------------------------
Net deferred tax asset 6,900 3,692
Valuation allowance 6,000 2,792
- ---------------------------------------------------------------------------------------------------------------------------
Deferred tax asset, net of valuation allowance $ 900 $ 900
===========================================================================================================================
</TABLE>
The net change in the valuation allowance for the year ended December
31, 1998 was $3,208,000. The valuation allowance primarily relates to
uncertainties on the deductibility for UBT purposes of certain compensation
related items and the amortization expense related to certain intangibles. The
deferred tax asset is included in other assets.
16. Business Segment Information
The Partnership adopted Statement of Financial Accounting Standards No. 131
("SFAS 131") "Disclosures about Segments of an Enterprise and Related
Information" in these consolidated financial statements. SFAS 131 establishes
standards for the way a public enterprise reports information about operating
segments in its annual and interim financial statements. It also establishes
standards for related enterprise-wide disclosures about products and services,
geographic areas and major customers. Generally, financial information is
required to be reported on a basis used by management to allocate resources and
assess performance.
Management of the Partnership has assessed the requirements of SFAS 131
and determined, because it utilizes a consolidated approach to assess
performance and allocate resources, that the Partnership has only one operating
segment. Enterprise-wide disclosures as of and for the years ended December 31,
1998, 1997 and 1996 were as follows:
Services
Total revenues derived from the Partnership's investment management services for
the years ended December 31, were (in millions):
<TABLE>
<CAPTION>
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Separately managed accounts $ 373 $323 $281
Alliance mutual funds
Mutual funds 674 432 328
Variable products 93 68 45
Cash management services 175 146 127
Other 9 6 8
- ---------------------------------------------------------------------------------------------------------------------------
Total $1,324 $975 $789
===========================================================================================================================
</TABLE>
76 Alliance Capital
<PAGE>
Geographic Information
Total revenues, long-lived assets and assets under management related to the
Partnership's domestic and foreign operations as of and for the years ended
December 31, were (in millions):
<TABLE>
<CAPTION>
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Total revenues:
United States $1,122 $884 $737
International 202 91 52
- ---------------------------------------------------------------------------------------------------------------------------
$1,324 $975 $789
===========================================================================================================================
Long-lived assets:
United States $536 $400 $305
International 38 29 161
- ---------------------------------------------------------------------------------------------------------------------------
$574 $429 $466
===========================================================================================================================
Assets under management:
United States $250,894 $197,292 $169,144
International 35,765 21,362 13,648
- ---------------------------------------------------------------------------------------------------------------------------
$286,659 $218,654 $182,792
===========================================================================================================================
</TABLE>
Major Customers
The Alliance mutual funds are distributed to individual investors through
broker-dealers, insurance sales representatives, banks, registered investment
advisers, financial planners and other financial intermediaries. EQ Financial
Consultants, Inc. ("EQ Financial"), a wholly-owned subsidiary of Equitable that
uses members of ELAS' insurance agency sales force as its registered
representatives, has entered into a selected dealer agreement with AFD, and has
been responsible for 5%, 7% and 13% of U.S. and offshore mutual fund sales in
1998, 1997, and 1996, respectively. Subsidiaries of Merrill Lynch & Co., Inc.
("Merrill Lynch") were responsible for approximately 26%, 24% and 20% of
Alliance mutual fund sales in 1998, 1997, and 1996, respectively. Citigroup Inc.
("Citigroup"), parent company of Salomon Smith Barney (formerly Smith Barney
Inc.), was responsible for approximately 6% of Alliance mutual fund sales in
1998, 7% in 1997 and 9% in 1996. EQ Financial, Merrill Lynch and Citigroup are
under no obligation to sell a specific amount of fund shares and each also sells
shares of mutual funds that it sponsors and which are sponsored by unaffiliated
organizations.
AXA and the general and separate accounts of Equitable and its
insurance company subsidiary (including the investments by the separate accounts
of Equitable in The Hudson River Trust) accounted for approximately 22%, 26% and
27% of the Partnership's total assets under management at December 31, 1998,
1997 and 1996, respectively, and approximately 11%, 14% and 13% of the
Partnership's total revenues for the years ended December 31, 1998, 1997 and
1996, respectively. No single institutional client, other than Equitable and its
insurance company subsidiary, accounted for more than 1% of the Partnership's
total revenues for the years ended December 31, 1998, 1997 and 1996,
respectively.
1998 Annual Report 77
<PAGE>
17. Related Party Transactions
The Partnership and its consolidated subsidiaries provide investment management,
distribution, and shareholder and administrative services to the Alliance mutual
funds. Substantially all of these services are provided under contracts that set
forth the services to be provided and the fees to be charged. The contracts are
subject to annual review and approval by each of the Alliance mutual funds'
boards of directors or trustees and, in certain circumstances, by the Alliance
mutual funds' shareholders.
Revenues for services provided to the Alliance mutual funds are as
follows (in thousands):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Investment advisory and services fees $588,396 $384,759 $291,601
Distribution revenues 301,846 216,851 169,071
Shareholder servicing fees 43,475 36,327 31,272
Other revenues 8,572 8,579 8,194
===========================================================================================================================
</TABLE>
The Partnership provides investment management and administration
services to Equitable and certain of its subsidiaries other than the Partnership
("Equitable Subsidiaries") and certain of their affiliates. In addition, certain
Equitable Subsidiaries distribute Alliance mutual funds, for which they receive
commissions and distribution payments. Sales of Alliance mutual funds through
the Equitable Subsidiaries, excluding cash management products, aggregated
$859,266,000, $594,116,000 and $697,144,000 for the years ended December 31,
1998, 1997 and 1996, respectively. The Partnership and its employees are covered
by various insurance policies maintained by Equitable Subsidiaries. In addition,
the Partnership pays fees for other services provided by Equitable Subsidiaries.
Aggregate amounts included in the consolidated financial statements for
transactions with AXA and the Equitable Subsidiaries and certain of their
affiliates are as follows (in thousands):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenues:
Investment advisory and services fees $58,051 $52,930 $44,901
Other revenues 7,931 7,739 7,548
- ---------------------------------------------------------------------------------------------------------------------------
Expenses:
Distribution payments to financial intermediaries 82,444 56,118 30,533
General and administrative 4,476 5,819 5,865
===========================================================================================================================
</TABLE>
18. Supplemental Cash Flow Information
Cash payments for interest and income taxes were as follows (in thousands):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Interest $ 4,043 $ 1,803 $ 506
Income taxes 15,460 15,724 14,797
===========================================================================================================================
</TABLE>
78 Alliance Capital
<PAGE>
19. Accounting Pronouncement
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, ("SFAS 133") "Accounting for Derivative
Instruments and Hedging Activities." Under this Statement, an entity is required
to recognize derivative instruments as either assets or liabilities in the
statement of financial condition and measure those instruments at fair value. In
addition, any entity that elects to apply hedge accounting is required to
establish at the inception of the hedge the method it will use for assessing
effectiveness of the hedging derivative and the measurement approach for
determining the ineffective aspect of the hedge. This Statement is effective for
all fiscal quarters of fiscal years beginning after June 15, 1999. Management of
the Partnership intends to adopt this Statement on January 1, 2000 and does not
believe that the adoption of the Statement will have a material effect on its
results of operations, liquidity, or capital resources.
20. Cash Distribution
On February 1, 1999, the General Partner declared a distribution of $73,997,000
or $0.43 per Unit representing the Available Cash Flow (as defined in the
Partnership Agreement) of the Partnership for the three months ended December
31, 1998. The distribution is payable on February 23, 1999 to holders of record
on February 16, 1999.
21. Quarterly Financial Data (unaudited)
(In thousands, except per Unit data)
<TABLE>
<CAPTION>
QUARTERS ENDED 1998
- ---------------------------------------------------------------------------------------------------------------------------
DECEMBER SEPTEMBER JUNE MARCH
31 30 30 31
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues $349,056 $326,863 $332,120 $316,017
Net income 77,843 70,248 75,841 68,984
Basic net income per Unit(1) .45 .41 .44 .40
Diluted net income per Unit .44 .40 .43 .39
Cash distributions per Unit(2) .43 .39 .42 .38
Unit prices(3):
High 27-1/2 28 29 27-7/8
Low 19-3/4 19-5/8 23-7/8 18-13/16
===========================================================================================================================
QUARTERS ENDED 1997
- ---------------------------------------------------------------------------------------------------------------------------
DECEMBER SEPTEMBER JUNE MARCH
31 30 30 31
- ---------------------------------------------------------------------------------------------------------------------------
Revenues $279,901 $250,848 $225,336 $219,251
Net income (loss) 73,520 66,209 (64,122) 53,349
Basic net income (loss) per Unit(1) .43 .39 (.38) .31
Diluted net income (loss) per Unit(1) .42 .38 (.38) .31
Cash distributions per Unit(2) .41 .37 .32 .30
Unit prices(3):
High 19-15/16 18-13/16 14-15/16 15-1/8
Low 15-23/32 14-1/2 12 12
===========================================================================================================================
</TABLE>
(1) Due to changes in the number of weighted average shares outstanding,
quarterly net income per Unit does not add to the totals for the year.
(2) Declared and paid during the following quarter.
(3) High and low sales prices as reported by the New York Stock Exchange.
1998 Annual Report 79
<PAGE>
Independent Auditors' Report
The General Partner and Unitholders
Alliance Capital Management L.P.
We have audited the accompanying consolidated statements of financial
condition of Alliance Capital Management L.P. and subsidiaries as of December
31, 1998 and 1997, and the related consolidated statements of income, changes in
partners' capital and comprehensive income and cash flows for each of the years
in the three-year period ended December 31, 1998. These consolidated financial
statements are the responsibility of the management of Alliance Capital
Management Corporation, General Partner. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Alliance
Capital Management L.P. and subsidiaries as of December 31, 1998 and 1997 and
the results of their operations and their cash flows for each of the years in
the three-year period ended December 31, 1998 in conformity with generally
accepted accounting principles.
/s/ KPMG LLP
New York, New York
February 1, 1999
80 Alliance Capital
<PAGE>
SUBSIDIARIES OF THE PARTNERSHIP
Alliance Capital Management
Corporation of Delaware
(Delaware)
ACMC, Inc.
(Delaware)
ACM Software Services Ltd.
(Delaware)
Alliance Capital Asset Management
(India) Private Ltd.
(India)
Alliance Capital Management
Australia Limited
(Australia)
Alliance Capital Management
(Asia) Ltd.
(Delaware)
Alliance Capital (Mauritius)
Private Limited
(Mauritius)
Alliance Corporate Finance
Group Incorporated
(Delaware)
Alliance Capital Management
(Brasil) Ltda.
(Brazil)
Alliance Capital Management
(India) Ltd.
(Delaware)
Alliance Capital Management
Canada, Inc.
(Canada)
<PAGE>
-2-
Alliance Capital Management
(Turkey) Ltd.
(Delaware)
Alliance Capital (Luxembourg) S.A.
(Luxembourg)
Alliance Eastern Europe Inc.
(Delaware)
Alliance Capital Global
Derivatives Corporation
(Delaware)
Alliance Barra Research
Institute, Inc.
(Delaware)
Alliance Fund Distributors, Inc.
(Delaware)
Alliance Fund Services, Inc.
(Delaware)
Alliance Capital Oceanic Corporation
(Delaware)
Alliance Capital Management
(Japan) Inc.
(Delaware)
ACM Fund Services, S.A.
(Luxembourg)
ACM Fund Services (Espana) S.L.
(Madrid)
ACSYS Software India Private Limited
(India)
Alliance Capital Limited
(UK)
<PAGE>
-3-
Alliance Capital Services Limited
(UK)
Cursitor Alliance LLC
(Delaware)
Cursitor Cecogest SA
(France)
Cursitor Courtage SARL
(France)
Cursitor-Eaton Asset
Management Company
(New York)
Cursitor Gestion SA
(France)
Cursitor Alliance Holdings Limited
(UK)
Cursitor Management Co. SA
(Luxembourg)
Alliance Asset Allocation Limited
(UK)
Dimensional Trust Management Limited
(UK)
Draycott Partners, Ltd.
(Massachusetts)
Equitable Investment Corporation
(Delaware)
Meiji-Alliance Capital Corporation
(Delaware)
New-Alliance Asset Management
(Asia) Limited
(Hong Kong)
<PAGE>
-4-
ACM New-Alliance (Luxembourg) S.A.
(Luxembourg)
Cursitor Alliance Services Limited
(UK)
East Fund Managementberatung GmbH
(Austria)
East Fund Management (Cyprus) LTD
(Cyprus)
EFM Consultanta Financiara Bucuresti SRL
(Romania)
ACM CIIC Investment Management Limited
(Cayman Islands)
Alliance Capital Management (Singapore) Ltd.
(Singapore)
Alliance Capital Investment Trust Management
Limited K.K.
(Japan)
Alliance-Odyssey Capital Management (Proprietary) Limited
(South Africa)
Alliance-Odyssey Capital Management (Namibia)(Proprietary) Limited
(Namibia)
Alliance Capital Whittingdale Limited
(UK)
ACM Investments Limited
(UK)
Whittingdale Holdings Limited
(UK)
Whittingdale Nominees Limited
(UK)
<PAGE>
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Alliance Capital Management Corporation:
We consent to the use of our report dated February 1, 1999 relating to the
consolidated statements of financial condition of Alliance Capital Management
L.P. and subsidiaries as of December 31, 1998 and 1997, and the related
consolidated statements of income, changes in partners' capital and
comprehensive income, and cash flows for each of the years in the three-year
period ended December 31, 1998 incorporated herein by reference in the annual
report on Form 10K of Alliance Capital Management L.P.
New York, New York KPMG LLP
March 24, 1999
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Luis Javier Bastida
-------------------------
Luis Javier Bastida
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Kevin C. Dolan
-------------------------
Kevin C. Dolan
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature
appears below hereby revokes all prior powers granted by the undersigned to the
extent inconsistent herewith and constitutes and appoints Dave H. Williams, John
D. Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Henri de Castries
-------------------------
Henri de Castries
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Kevin C. Dolan
-------------------------
Kevin C. Dolan
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Denis Duverne
-------------------------
Denis Duverne
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Alfred Harrison
-------------------------
Alfred Harrison
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Herve Hatt
-------------------------
Herve Hatt
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Michael Hegarty
-------------------------
Michael Hegarty
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature
appears below hereby revokes all prior powers granted by the undersigned to the
extent inconsistent herewith and constitutes and appoints Dave H. Williams, John
D. Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Benjamin D. Holloway
-------------------------
Benjamin D. Holloway
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Edward D. Miller
-------------------------
Edward D. Miller
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Peter D. Noris
-------------------------
Peter D. Noris
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Stan B. Tulin
-------------------------
Stan B. Tulin
<PAGE>
POWER-OF-ATTORNEY
KNOWN TO ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby revokes all prior powers granted by the undersigned to the extent
inconsistent herewith and constitutes and appoints Dave H. Williams, John D.
Carifa and David R. Brewer, Jr., and each of them, to act severally as
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned in any and all capacities, for the sole
purpose of signing the Alliance Capital Management L.P. Annual Report on Form
10-K for the fiscal year ended December 31, 1998 and filing the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Date: March 4, 1999
/s/ Robert B. Zoellick
-------------------------
Robert B. Zoellick
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 75,186
<SECURITIES> 94,743
<RECEIVABLES> 332,110
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 502,039
<PP&E> 96,401
<DEPRECIATION> 0
<TOTAL-ASSETS> 1,132,592
<CURRENT-LIABILITIES> 696,944
<BONDS> 5,375
0
0
<COMMON> 0
<OTHER-SE> 430,273
<TOTAL-LIABILITY-AND-EQUITY> 1,132,592
<SALES> 1,324,056
<TOTAL-REVENUES> 1,324,056
<CGS> 0
<TOTAL-COSTS> 963,586
<OTHER-EXPENSES> 4,172
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,586
<INCOME-PRETAX> 348,712
<INCOME-TAX> 55,796
<INCOME-CONTINUING> 292,916
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 292,916
<EPS-PRIMARY> 1.71
<EPS-DILUTED> 1.66
</TABLE>
