Exhibit 10.1


 


EXECUTION COPY


 


Published CUSIP
Number:                         


 


 


REVOLVING CREDIT
AGREEMENT

Dated as of February 17, 2006


 


 


among


 


 


ALLIANCE CAPITAL
MANAGEMENT L. P.,

as Borrower,


 


BANK OF AMERICA, N.A.,

as Administrative Agent,


 


BANC OF AMERICA
SECURITIES LLC,

as Arranger,


 


CITIBANK, N.A. and

THE BANK OF NEW YORK,

as Co-Syndication Agents,


 


DEUTSCHE BANK SECURITIES
INC. and 

JPMORGAN CHASE BANK, N.A.,

as Co-Documentation Agents,


 


and


 


THE FINANCIAL
INSTITUTIONS WHOSE NAMES APPEAR

ON THE SIGNATURE PAGES HEREOF AS “BANKS”


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS AND
  RULES OF INTERPRETATION.

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.2

  	
  Rules of
  Interpretation

  	
  16

  
	
   

  	
   

  	
   

  
	
  2.

  	
  THE REVOLVING
  CREDIT FACILITY.

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Commitment to Lend

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2

  	
  Facility Fee

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3

  	
  Utilization Fee

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4

  	
  Other Fees

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.5

  	
  Reduction or Increase
  of Total Commitment

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.6

  	
  The Notes; the Record

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.7

  	
  Interest on Loans

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.8

  	
  Requests for Loans

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.9

  	
  Conversion Options

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.10

  	
  Funds for Loans

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.11

  	
  Limit on Number of
  LIBOR Loans

  	
  22

  
	
   

  	
   

  	
   

  
	
  3.

  	
  REPAYMENT OF
  LOANS

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Maturity

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Mandatory Repayments of
  Loans

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  Optional Repayments of
  Loans

  	
  24

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CERTAIN GENERAL
  PROVISIONS

  	
  24

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Application of Payments

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2

  	
  Funds for Payments

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3

  	
  Computations

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.4

  	
  Inability to Determine
  LIBOR Rate Basis

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.5

  	
  Illegality

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.6

  	
  Additional Costs, Etc.

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.7

  	
  Capital Adequacy

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.8

  	
  Certificate

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.9

  	
  Indemnity

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.10

  	
  Interest After Default

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.11

  	
  Taxes

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.12

  	
  Mitigation and
  Replacement

  	
  29

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  5.

  	
  REPRESENTATIONS
  AND WARRANTIES.

  	
  30

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Corporate Authority

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.2

  	
  Governmental Approvals

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.3

  	
  Liens; Leases

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.4

  	
  Financial Statements

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.5

  	
  No Material Changes,
  Etc.

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.6

  	
  Permits

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.7

  	
  Litigation

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.8

  	
  Material Contracts

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.9

  	
  Compliance with Other
  Instruments, Laws, Etc.

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.10

  	
  Tax Status

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.11

  	
  No Event of Default

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.12

  	
  Investment Company Act

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.13

  	
  Insurance

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.14

  	
  Certain Transactions

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.15

  	
  Employee Benefit Plans

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.16

  	
  Regulations U and X

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.17

  	
  Environmental
  Compliance

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.18

  	
  Funded Debt

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.19

  	
  General

  	
  35

  
	
   

  	
   

  	
   

  
	
  6.

  	
  AFFIRMATIVE
  COVENANTS OF THE BORROWER.

  	
  35

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Punctual Payment

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Maintenance of Office

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.3

  	
  Records and Accounts

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.4

  	
  Financial Statements,
  Certificates, and Information

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.5

  	
  Notices

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.6

  	
  Existence; Business;
  Properties

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.7

  	
  Insurance

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.8

  	
  Taxes

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.9

  	
  Inspection of
  Properties and Books, Etc.

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.10

  	
  Compliance with
  Government Mandates, Contracts, and Permits

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.11

  	
  Use of Proceeds

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.12

  	
  Certain Changes in
  Accounting Principles

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.13

  	
  Broker-Dealer
  Subsidiaries

  	
  42

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  7.

  	
  CERTAIN NEGATIVE
  COVENANTS OF THE BORROWER.

  	
  42

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Disposition of Assets

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.2

  	
  Fundamental Changes

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.3

  	
  Restrictions on Liens

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.4

  	
  Restrictions on
  Investments

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.5

  	
  Restrictions on Funded
  Debt

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.6

  	
  Distributions

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.7

  	
  Transactions with
  Affiliates

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.8

  	
  Fiscal Year

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.9

  	
  Compliance with
  Environmental Laws

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.10

  	
  Employee Benefit Plans

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.11

  	
  Amendments to Certain
  Documents

  	
  47

  
	
   

  	
   

  	
   

  
	
  8.

  	
  FINANCIAL
  COVENANTS OF THE BORROWER.

  	
  47

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Consolidated Leverage
  Ratio

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.2

  	
  Minimum Consolidated
  Net Worth

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.3

  	
  Miscellaneous

  	
  47

  
	
   

  	
   

  	
   

  
	
  9.

  	
  CLOSING
  CONDITIONS.

  	
  47

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Financial Statements
  and Material Changes

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.2

  	
  Loan Documents

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.3

  	
  Certified Copies of
  Charter Documents

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.4

  	
  Partnership and
  Corporate Action

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.5

  	
  Consents

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.6

  	
  Opinions of Counsel

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.7

  	
  Proceedings

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.8

  	
  Incumbency Certificate

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.9

  	
  Fees

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.10

  	
  Representations and
  Warranties True; No Defaults

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.11

  	
  Termination of Prior
  Credit Agreement

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.12

  	
  Determinations under
  Section 9

  	
  49

  
	
   

  	
   

  	
   

  
	
  10.

  	
  CONDITIONS TO
  ALL BORROWINGS.

  	
  49

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  No Default

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2

  	
  Representations True

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.3

  	
  Loan Request

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.4

  	
  Payment of Fees

  	
  49

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  10.5

  	
  No Legal Impediment

  	
  50

  
	
   

  	
   

  	
   

  
	
  11.

  	
  EVENTS OF
  DEFAULT; ACCELERATION; ETC.

  	
  50

  
	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Events of Default and
  Acceleration

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.2

  	
  Termination of Commitments

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.3

  	
  Application of Monies

  	
  53

  
	
   

  	
   

  	
   

  
	
  12.

  	
  SETOFF

  	
  53

  
	
   

  	
   

  	
   

  
	
  13.

  	
  THE
  ADMINISTRATIVE AGENT

  	
  54

  
	
   

  	
   

  	
   

  
	
   

  	
  13.2

  	
  Other Agents; Arrangers
  and Managers

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.3

  	
  Payments

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.4

  	
  Holders of Notes

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.5

  	
  Payments by Borrower;
  Presumptions by Administrative Agent

  	
  58

  
	
   

  	
   

  	
   

  
	
  14.

  	
  EXPENSES

  	
  58

  
	
   

  	
   

  	
   

  
	
  15.

  	
  INDEMNIFICATION

  	
  59

  
	
   

  	
   

  	
   

  
	
  16.

  	
  SURVIVAL OF
  COVENANTS, ETC.

  	
  59

  
	
   

  	
   

  	
   

  
	
  17.

  	
  ASSIGNMENT AND
  PARTICIPATION.

  	
  60

  
	
   

  	
   

  	
   

  
	
   

  	
  17.1

  	
  Assignments and
  Participations

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.2

  	
  New Notes

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.3

  	
  Disclosure

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.4

  	
  Assignee or Participant
  Affiliated with the Borrower

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.5

  	
  Miscellaneous
  Assignment Provisions

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.6

  	
  SPC Provision

  	
  63

  
	
   

  	
   

  	
   

  
	
  18.

  	
  NOTICES, ETC.

  	
  64

  
	
   

  	
   

  	
   

  
	
   

  	
  18.1

  	
  Notices

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.2

  	
  Electronic Notices

  	
  64

  



 


iv

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  19.

  	
  CONFIDENTIALITY

  	
  65

  
	
   

  	
   

  	
   

  
	
  20.

  	
  GOVERNING LAW

  	
  65

  
	
   

  	
   

  	
   

  
	
  21.

  	
  HEADINGS

  	
  65

  
	
   

  	
   

  	
   

  
	
  22.

  	
  COUNTERPARTS

  	
  66

  
	
   

  	
   

  	
   

  
	
  23.

  	
  ENTIRE
  AGREEMENT, ETC.

  	
  66

  
	
   

  	
   

  	
   

  
	
  24.

  	
  WAIVER OF JURY
  TRIAL

  	
  66

  
	
   

  	
   

  	
   

  
	
  25.

  	
  CONSENTS,
  AMENDMENTS, WAIVERS, ETC.

  	
  66

  
	
   

  	
   

  	
   

  
	
  26.

  	
  NO WAIVER;
  CUMULATIVE REMEDIES

  	
  67

  
	
   

  	
   

  	
   

  
	
  27.

  	
  SEVERABILITY

  	
  67

  
	
   

  	
   

  	
   

  
	
  28.

  	
  USA PATRIOT Act
  Notice

  	
  67

  



 


v

















 


 


Schedules


 


	
  Schedule 1

  	
   

  	
  -

  	
   

  	
  Banks and Commitments

  
	
  Schedule 2

  	
   

  	
  -

  	
   

  	
  Broker-Dealer Subsidiaries

  
	
  Schedule 5.2

  	
   

  	
  -

  	
   

  	
  Governmental Approvals

  
	
  Schedule 5.19

  	
   

  	
  -

  	
   

  	
  Funded Debt

  
	
  Schedule 7.3

  	
   

  	
  -

  	
   

  	
  Certain Permitted Liens

  
	
  Schedule 7.4

  	
   

  	
  -

  	
   

  	
  Certain Investments

  



 


Exhibits


 


	
  Exhibit A

  	
   

  	
  -

  	
   

  	
  Form of Note

  
	
  Exhibit B

  	
   

  	
  -

  	
   

  	
  Form of Loan Request

  
	
  Exhibit C

  	
   

  	
  -

  	
   

  	
  Form of Confirmation of Loan Request

  
	
  Exhibit D

  	
   

  	
  -

  	
   

  	
  Form of Conversion Request

  
	
  Exhibit E

  	
   

  	
  -

  	
   

  	
  Form of Confirmation of Conversion Request

  
	
  Exhibit F

  	
   

  	
  -

  	
   

  	
  Form of Compliance Certificate

  
	
  Exhibit G

  	
   

  	
  -

  	
   

  	
  Opinion Letter

  
	
  Exhibit H

  	
   

  	
  -

  	
   

  	
  Form of Assignment and Acceptance

  
	
  Exhibit I

  	
   

  	
  -

  	
   

  	
  Form of Supplement

  



 


vi

















 


REVOLVING CREDIT AGREEMENT


 


THIS REVOLVING CREDIT
AGREEMENT, dated as of February 17, 2006 (this “Credit Agreement”), by and
among ALLIANCE CAPITAL MANAGEMENT L.P., a Delaware limited partnership (together
with its permitted successors, the “Borrower”), the financial institutions from
time to time party hereto (collectively, the “Banks”), and BANK OF AMERICA,
N.A., as administrative agent for the Banks (in such capacity, the “Administrative
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 for general partnership purposes, including the support of the
Borrower’s issuance of commercial paper, 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
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:


 


Accounting Change.  As defined in Section 6.12.


 


Accounting Notice.  As defined in Section 6.12.


 


Acquisition.  As defined in Section 7.2.


 


Administrative Agent.  Bank
of America, acting as administrative agent for the Banks, or any successor
Administrative Agent appointed pursuant to Section 13.1.6.


 


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.


 


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.


 


Affected Computation.  As defined in Section 6.12.


 

















 


Affiliate.  As defined under Rule 144 (a) under
the Securities Act of 1933, as amended, but, in the case of the Borrower, not
including any Subsidiary or any investment fund which is managed or advised by
the Borrower.


 


Agent-Related Person.  The Administrative Agent, together with its
Affiliates (including, in the case of Bank of America, in its capacity as the
Administrative Agent, and Banc of America Securities LLC), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.


 


Alliance Distributors.  AllianceBernstein Investment Research and Management, Inc., a Delaware corporation, or any successor
thereto as the primary distributor of securities of investment companies
sponsored by the Borrower or its Subsidiaries.


 


Alternate Base Rate.  A simple interest rate equal to the higher of
(a) the Federal Funds Rate Basis plus one-half of one percent (0.50%) or (b) the
Prime Rate.  The Alternate Base Rate
shall be adjusted automatically as of the opening of business as of the
effective date of each change in the Federal Funds Rate Basis or the Prime
Rate, as the case may be, to account for such change.


 


Alternate Base Rate Loan.  A Loan which bears interest at the Alternate
Base Rate.


 


Applicable Lending Office.  With respect to
each Bank, such Bank’s Domestic Lending Office in the case of a Federal Funds
Rate Loan or Alternate Base Rate Loan and such Bank’s LIBOR Lending Office in
the case of a LIBOR Loan.


 


Applicable Margin.  An annual percentage rate determined by the
Administrative Agent, as of any date of determination, in accordance with the
Borrower’s long-term senior unsecured debt rating in effect as of any date of
determination as follows:


 


	
  Borrower’s

  S&P Rating/Moody’s Rating

  	
   

  	
  Applicable Margin

  	
   

  
	
  >
  AA/Aa2

  	
   

  	
  0.150%

  	
   

  
	
  AA-, A+/Aa3, A1

  	
   

  	
  0.190%

  	
   

  
	
  A/A2

  	
   

  	
  0.230%

  	
   

  
	
  A-/A3

  	
   

  	
  0.270%

  	
   

  
	
  BBB+/Baa1

  	
   

  	
  0.310%

  	
   

  
	
  <
  BBB/Baa2 or no S&P Rating or Moody’s Rating

  	
   

  	
  0.375%

  	
   

  



 


Notwithstanding the foregoing, (a) if there is a
split in the debt ratings of only one level, the Applicable Margin of the higher
debt rating shall apply and (b) if there is a split in the debt ratings of
more than one level, the Applicable Margin that is one level higher than the
Applicable Margin of the lower debt rating shall apply, in any such case,
subject, as applicable, to the provisions of Section 4.10 hereof.


 


2

















 


Approved Fund.  Any Fund that is administered or managed by (a) a
Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of
an entity that administers or manages a Bank.


 


Assignment and Acceptance.  an assignment and acceptance entered into by
a Bank and an Eligible Assignee (with the consent of any party whose consent is
required by Section 17.1), and accepted by the Administrative Agent, in
substantially the form of Exhibit H or any other form approved by
the Administrative Agent and the Borrower.


 


Attributable Indebtedness.  On any date with respect to any Person, in
respect of any Synthetic Lease Obligation of such Person, the capitalized
amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease were accounted for as a Capitalized Lease.


 


AXA Group.  AXA, a société anonyme
organized under the laws of France, and its Subsidiaries.


 


Bank of America.  Bank of
America, N.A., a national banking association.


 


Banks.  As defined in the preamble hereto.


 


Borrower.  As defined in the preamble hereto.


 


Borrower Control Change Notice.  As defined in Section 6.5.4.


 


Borrower Partnership Agreement.  The Amended and Restated Agreement of Limited
Partnership of the Borrower, dated as of October 29, 1999, by and among
the General 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.


 


Broker-Dealer Debt.  The obligations incurred or otherwise arising
in connection with the Securities Trading Activities of any Broker-Dealer
Subsidiary.


 


Broker-Dealer Subsidiaries.  The Subsidiaries listed on Schedule 2
attached hereto and each other Subsidiary that engages in activities of the
type described in the definition of Securities Trading Activities and that is
so designated by the Borrower in writing to the Administrative Agent; and “Broker-Dealer
Subsidiary” means any one of such Broker-Dealer Subsidiaries.


 


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 LIBOR Loans, also a day which is a
LIBOR Business Day.


 


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


 


3

















 


which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with
GAAP.


 


CERCLA.  As defined in Section 5.17(a).


 


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 AXA Financial, Inc.
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 AXA Financial, Inc. 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 March 31, 2006,
on which each of the conditions set forth in Section 9 is satisfied or
waived.


 


Code.  The Internal Revenue Code of 1986, as
amended.


 


Co-Documentation Agent.  Deutsche Bank Securities Inc. and JPMorgan
Chase Bank, N.A., acting as co-documentation agents.


 


Commitment.  With respect to each Bank party hereto on the
date hereof, its obligation to make Loans to the Borrower, in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Bank’s name on Schedule 1 under the caption “Commitment”
or opposite such caption in the Assignment and Acceptance pursuant to which
such Bank becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Credit Agreement; or if such
commitment is terminated pursuant to the provisions hereof, zero.


 


Commitment Percentage.  With respect to each Bank at any time, the percentage carried out to the ninth
decimal place) of the Total Commitment represented by such Bank’s Commitment at
such time.  If the Commitment of
each Bank has been terminated in full pursuant to Section 2.5(a) or
11.1, or if the Commitments have expired, then the Commitment Percentage of
each Bank shall be determined based on the Commitment Percentage of such Bank
most recently in effect, after giving effect to any subsequent
assignments.  The initial Commitment Percentage
of each Bank is set forth opposite the name of such Bank on Schedule 1
or in the Assignment and Acceptance pursuant to which such Bank becomes a party
hereto, as applicable.


 


Consolidated or consolidated.
Except as otherwise provided, with reference to any term defined herein, shall
mean that term as applied to the accounts of the Borrower, the Consolidated
Subsidiaries and the Excluded Funds consolidated in accordance with GAAP.


 


Consolidated Adjusted Cash Flow.  With respect to any fiscal period, the sum of
(A) EBITDA for such fiscal period, plus (B) non-cash charges (other
than charges for depreciation


 


4

















 


and amortization) for
such fiscal period to the extent deducted in determining Consolidated Net
Income (or Loss) for such period.


 


Consolidated Adjusted Funded Debt.  At any time, 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 and, except with
respect to items (f) and (g) of the definition of Funded Debt,
determined in accordance with GAAP.


 


Consolidated Leverage Ratio.  As of any date of determination, the ratio of
(a) Consolidated Adjusted Funded Debt as of such date to
(b) Consolidated Adjusted Cash Flow for the period of the four fiscal
quarters most recently ended for which the Borrower has delivered financial
statements.


 


Consolidated Net Income (or Loss).
The net income (or loss) of the Borrower and the Consolidated Subsidiaries,
determined in accordance with GAAP, but excluding in any event:


 


(a)           any
portion of the net earnings of any Subsidiary that, by virtue of a restriction
or Lien binding on such Subsidiary under a Contract or Government Mandate, is
unavailable for payment of dividends to the Borrower or any other 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, 2004, through the end of the period
for which Consolidated Net Income (or Loss) is then being determined, taken as
one accounting period.


 


Consolidated Net Worth.  The excess of Consolidated Total Assets over
Consolidated Total Liabilities, less, to the extent otherwise includible
in the computations of Consolidated Net Worth, any subscriptions receivable
with respect to Equity Securities of the Borrower or its 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 (which, as provided in the
definition of “Subsidiary” do not include the Excluded Funds) 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 (excluding the Excluded Funds) in accordance with GAAP.


 


Consolidated Total Liabilities.  All liabilities of the Borrower determined on
a consolidated basis (excluding the Excluded Funds) 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.


 


Control Change Notice.  As defined in Section 6.5.4.


 


5

















 


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.


 


Co-Syndication Agent.  Citibank, N.A. and The Bank of New York,
acting as co-syndication agents.


 


Credit Agreement.  This Revolving Credit Agreement, including
the Schedules and Exhibits hereto.


 


Default.  Any event or condition that constitutes an
Event of Default or that, with the giving of any notice, the passage of time,
or both, would be an Event of Default.


 


Delinquent Bank.  As defined in Section 13.3.


 


Disposition.  As defined in Section 7.1.


 


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.


 


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 or in the Assignment and Acceptance
pursuant to which it became a party hereto; thereafter, such other office of
such Bank, if any, located within the United States that will be making or
maintaining Federal Funds Rate Loans or Alternate Base Rate Loans.


 


Drawdown Date.  The date on which any Loan is made or is to
be made, and the date on which any 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).


 


Effective Date.  As defined in Section 6.12(c).


 


Eligible Assignee.  Any of (a) a
Bank, (b) an Affiliate of a Bank, (c) an Approved Fund, (d) 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); (e) 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 (f) the central
bank of any country which is a member of the OECD.


 


6

















 


Employee Benefit Plan.  Any employee benefit plan within the meaning
of §3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate, other than a Multiemployer Plan.


 


Entity.  Any corporation, partnership, trust,
unincorporated association, joint venture, limited liability company, or other
legal or business entity.


 


Environmental Laws.  As defined in Section 5.17(a).


 


EPA. 
As defined in Section 5.17(b).


 


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 §414 of the Code.


 


ERISA Reportable Event.  A reportable event with respect to a
Guaranteed Pension Plan within the meaning of §4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has
not been waived.


 


Event of Default.  As defined in Section 11.


 


Examining Authority.  The meaning set forth in Rule 15c3-1(c)(12)
under the Securities Exchange Act of 1934, as amended.


 


Excluded Funds.  A
collective reference to each investment company, investment fund or similar
Entity that (i) is deemed not to be a “Subsidiary” of the Borrower by
virtue of the definition of “Subsidiary,” but (ii) is required in
accordance with the application of Financial Accounting Standards Board
Interpretation No. 46-Revised, Accounting Research Bulletin 51 and related
or successor accounting literature to be consolidated with the Borrower for
financial reporting purposes.  The
assets, liabilities, income (or losses), or activities or other attributes of any
Excluded Fund, including without limitation, Funded Debt, Investments or
Indebtedness of any Excluded Fund, shall not be attributed to the Borrower or
any Subsidiary or Consolidated Subsidiary of the Borrower for purposes of this
Credit Agreement as a result solely of the application of principles of
consolidation applied in accordance with GAAP that require consolidation of
Excluded Funds.


 


Excluded Taxes.  With
respect to the Administrative Agent, any Bank or any other recipient of any
payment to be made by or on account of any obligation of the Borrower
hereunder, (a) taxes imposed on or measured by its overall net income
(however denominated), and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Bank, in which its Applicable Lending Office is
located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located and (c) in
the case of a Foreign Bank, any United States withholding tax that is imposed
on amounts payable to such Foreign Bank at the time such


 


7

















 


Foreign
Bank becomes a party hereto (or designates a new Lending Office) or is
attributable to such Foreign Bank’s failure or inability (other than as a
result of a change in law) to comply with Section 4.11(e), except to the
extent that such Foreign Bank (or its assignor, if any) was entitled, at the
time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 4.11(a).


 


Federal Funds Rate.  A simple interest rate equal to the sum of
the Federal Funds Rate Basis plus the Applicable Margin.  The Federal Funds Rate shall be adjusted
automatically as of the opening of business of the effective date of each change
in the Federal Funds Rate Basis to account for such change.


 


Federal Funds Rate Basis.  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 on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate Basis for such day shall be such rate
on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate Basis for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of
1/100 of 1%) charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.


 


Federal Funds Rate Loan.  A Loan (other than an Alternate Base Rate
Loan) which bears interest at the Federal Funds Rate.


 


Fee Letter.  That certain fee letter dated January 17,
2006 among the Borrower, Bank of America, and Banc of America Securities LLC.


 


Foreign Bank.  Any
Bank that is organized under the laws of a jurisdiction other than that in
which the Borrower is resident for tax purposes.  For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.


 


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.


 


Fund.  Any Person (other than an
individual) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business; provided, that the foregoing shall be
disregarded for purposes of the definition of Excluded Funds.


 


Funded Debt.  With respect to the Borrower or any
Consolidated Subsidiary, (a) all Indebtedness for money borrowed of such
Person, (b) in respect of Capitalized Leases, the capitalized amount
thereof that would appear on a balance sheet of such Person prepared in
accordance with GAAP, (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 in respect of the
disposition of 12b-1 Fees, (e) all guarantees, endorsements,


 


8

















 


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, (f) net
obligations of such Person under any Swap Contract in an amount equal to the
Swap Termination Value thereof, and (g) Attributable Indebtedness of such
Person.  Notwithstanding the foregoing,
Funded Debt shall not include Broker-Dealer Debt.


 


GAAP.  Subject to Section 6.12, (a) when
used in financial covenants set forth in Section 8, whether directly or
indirectly through reference to a capitalized term used therein,  (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,
2004, 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, 2004, 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, subject, in
each case, to the application of accounting principles as of the date of
implementation of, and with respect to, Financial Accounting Standards Board
Interpretation No. 46-Revised.


 


General Partner.  (a) Alliance Capital Management
Corporation, a Delaware corporation, in its capacity as general partner of the
Borrower and (b) any other Persons who satisfy the requirements for
admitting general partners without causing a Default or an Event of Default as
set forth in Section 11.1(n) and who are so admitted, each in its capacity
as a general partner of the Borrower, and their respective successors.


 


Government Authority.  The United States of America or any state,
district, territory, or possession thereof, any local government within the
United States of America or any of its territories and possessions, any foreign
government having appropriate jurisdiction or any province, territory, or
possession thereof, or any court, tribunal, administrative or regulatory
agency, taxing or revenue authority, central bank or banking regulatory agency,
commission, or body of any of the foregoing.


 


Government Mandate.  With respect to (a) any Person, any
statute, law, rule, regulation, code, or ordinance duly adopted by any
Government Authority, any treaty or compact between two (2) or more
Government Authorities, and any judgment, order, decree, ruling, finding,
determination, or injunction of any Government Authority, in each such case
that is, pursuant to appropriate jurisdiction, legally binding on such Person,
any of its Subsidiaries or any of their respective properties, and (b) the
Administrative Agent or any Bank, in addition to subsection (a) hereof,
any policy, guideline, directive, or standard duly adopted by any Government
Authority with respect to the regulation of banks, monetary policy, lending,
investments, or other financial matters.


 


Granting Lender.  As defined in Section 17.6.


 


9

















 


Guarantee.  As to any Person, (a) any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Funded Debt or other obligation payable or
performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Funded Debt or other obligation, (ii) to purchase
or lease property, securities or services for the purpose of assuring the
obligee in respect of such Funded Debt or other obligation of the payment or
performance of such Funded Debt or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity or level of income or cash flow of the primary obligor so as to
enable the primary obligor to pay such Funded Debt or other obligation, or (iv) entered
into for the purpose of assuring in any other manner the obligee in respect of
such Funded Debt or other obligation of the payment or performance thereof or
to protect such obligee against loss in respect thereof (in whole or in part),
or (b) any Lien on any assets of such Person securing any Funded Debt or
other obligation of any other Person, whether or not such Funded Debt or other
obligation is assumed by such Person. 
The amount of any Guarantee shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a
corresponding meaning.


 


Guaranteed Pension Plan.  Any employee pension benefit plan within the
meaning of §3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.


 


Hazardous Substances.  As defined in Section 5.17(b).


 


Indebtedness.  All obligations, contingent and otherwise,
that in accordance with GAAP should be classified upon the obligor’s balance
sheet as liabilities, or to which reference should be made by footnotes thereto
in accordance with GAAP, including: (a) all debt and similar monetary
obligations, whether direct or indirect; (b) all liabilities secured by
any Lien existing on property owned or acquired subject thereto, whether or not
the liability secured thereby shall have been assumed; (c) all obligations
in respect of hedging contracts, including, without limitation, interest rate
and currency swaps, caps, collars and other financial derivative products; and (d) all
guarantees, endorsements, and other contingent obligations whether direct or
indirect in respect of indebtedness of others, including any obligation to
supply funds to or in any manner to invest in, directly or indirectly, the
debtor, to purchase indebtedness, or to assure the owner of 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. 
Notwithstanding the foregoing, Indebtedness shall not include
Broker-Dealer Debt.


 


Indemnified Liabilities.  As defined in Section 15.


 


Indemnified Taxes.  Taxes other than Excluded Taxes.


 


Interest Payment Date.  (a) As to any Federal Funds Rate Loan or
Alternate Base Rate Loan, the second Business Day of each calendar quarter for
the immediately preceding calendar quarter during all or a portion of which
such Federal Funds Rate Loan or Alternate Base Rate Loan were Outstanding and
the maturity of such Federal Funds Rate Loan or Alternate Base Rate


 


10

















 


Loan; (b) as to any
LIBOR Loan, the last day of each Interest Period with respect to such LIBOR
Loan, the maturity of such LIBOR Loan, and, if the Interest Period of such
LIBOR Loan is longer than three (3) months, the date that is three (3) months
from the first day of such Interest Period and the last day of each successive
three (3) month period during such Interest Period.


 


Interest Period.  With respect to any LIBOR Loan, (a) 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) or two (2) weeks,
or one (1), two (2), three (3), four (4), five (5), or six (6) months, if
available in readily ascertainable markets; and (b) 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; provided
that all of the foregoing provisions relating to Interest Periods are subject
to the following:


 


(i)            if
any Interest Period for a LIBOR Loan would otherwise end on a day that is not a
Business Day, that Interest Period shall be extended to the next succeeding
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 Business Day; and


 


(ii)           any
Interest Period commencing prior to the Maturity Date that would otherwise
extend beyond the Maturity Date shall end on the Maturity Date.


 


Investment.  As to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the
purchase or other acquisition of capital stock or other securities of another
Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or
equity participation or interest in, another Person, including any partnership
or joint venture interest in such other Person, or (c) the purchase or
other acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. 
For purposes of covenant compliance, the amount of any Investment shall
be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.


 


LIBOR Business Day.  Any day on which commercial banks are open
for international business (including dealings in Dollar deposits) in London,
England.


 


LIBOR Lending Office.  Initially, the office of each Bank designated
as such in Schedule 1 hereto or in the Assignment and Acceptance
pursuant to which it became a party hereto; thereafter, such other office of
such Bank, if any, that shall be making or maintaining LIBOR Loans.


 


LIBOR Loan.  A Loan which bears interest at the LIBOR
Rate.


 


LIBOR Rate.  A simple per annum interest rate equal to the
sum of (a) the quotient of (i) the LIBOR Rate Basis divided by (ii) one
minus the LIBOR Reserve Percentage, stated as a decimal, plus (b) the
Applicable Margin.  The LIBOR Rate shall
be rounded upward to four decimal places and shall apply to the applicable
Interest Period, and, once determined, shall be subject to the provisions of
this Credit Agreement and shall remain unchanged during the applicable Interest
Period, except for changes to reflect adjustments in the LIBOR Reserve
Percentage.


 


11

















 


LIBOR Rate Basis.  For
any Interest Period, the rate per annum equal to the British Bankers
Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated
by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, for Dollar deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period.  If such rate is not available at such time
for any reason, then the LIBOR Rate Basis for such Interest Period shall be the
interest rate per annum determined by the Administrative Agent to be the rate
at which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the LIBOR Loan being
made, continued or converted by the Banks and with a term equivalent to such
Interest Period would be offered by the Administrative Agent’s London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.


 


LIBOR Reserve Percentage.  The percentage which is in effect from time
to time under Regulation D of the Board of Governors of the Federal Reserve
System, as such regulation may be amended from time to time, as the actual
reserve requirement applicable with respect to Eurocurrency Liabilities (as
that term is defined in Regulation D), to the extent that any Bank has any
Eurocurrency Liabilities subject to such reserve requirement at that time.  The LIBOR Rate for any LIBOR Loan shall be
adjusted as of the effective date of any change in the LIBOR Reserve
Percentage.


 


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, any Notes and any
instrument or document designated by the parties thereto as a “Loan Document”
for purposes hereof.


 


Loan Request.  As defined in Section 2.8.


 


Loans.  Revolving credit loans made or to be made by
the Banks to the Borrower pursuant to Section 2.


 


Majority Banks.  The Banks whose aggregate Commitments
constitute more than fifty percent (50%) of the Total Commitment or, if the
Commitments have been terminated, the Banks whose Loans constitute more than fifty
percent (50%) of the aggregate amount of the Loans.


 


Material Adverse Effect.  A material adverse effect on (a) the
ability of the Borrower to enter into and to perform and observe its Obligations
under the Loan Documents, or (b) the assets, properties, business,
operations and condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole.


 


Material Broker-Dealer Subsidiary.
Any Broker-Dealer Subsidiary that has total assets as of the date of
determination equal to not less than five (5%) of the Consolidated Total Assets
of the Borrower as set forth in the consolidated balance sheet of the Borrower
(excluding the Excluded Funds) included in the most recent available annual or
quarterly report of the Borrower.


 


Material Subsidiary.  Any Subsidiary of the Borrower or Alliance
Distributors that, singly or together with any other such Subsidiaries then
subject to one or more of the conditions described in Section 11.1(h), Section 11.1(i),
or Section 11.1(m), either (a) at the date of


 


12

















 


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 (excluding the Excluded Funds) included in the most recent
available annual or quarterly report of the Borrower.


 


Maturity Date.  February 17, 2011.


 


Moody’s Rating.  With respect to any Entity, the rating
assigned to long-term senior unsecured debt issued by such Entity by Moody’s
Investors Service, Inc. from time to time in effect or, if such Entity
does not issue long-term senior unsecured debt rated by Moody’s Investors
Service, Inc., the issuer rating assigned by Moody’s Investors Service, Inc.
from time to time in effect.


 


Multiemployer Plan.  Any multiemployer plan within the meaning of
§3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.


 


Net Capital Rule.  Rule 15c3-1 under the Securities
Exchange Act of 1934, as amended.


 


1940 Act.  The Investment Company Act of 1940, as
amended.


 


Notes.  Any Notes of the Borrower to the Banks in
respect of the Borrower’s Obligations under this Credit Agreement of even date
herewith, substantially in the form of Exhibit A, as amended,
modified and renewed from time to time.


 


Obligations.  All indebtedness, obligations, and
liabilities of any of the Borrower or its Subsidiaries to any of the Banks and
the Administrative Agent, individually or collectively, existing on the date of
this Credit Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising or incurred under this Credit Agreement or any of
the other Loan Documents or in respect of any of the Loans made or any of the
Notes or other instruments at any time evidencing any thereof.


 


Other Taxes.  All
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement
of, or otherwise with respect to, this Credit Agreement or any other Loan
Document.


 


Outstanding.  With respect to the Loans, the aggregate
unpaid principal thereof as of any date of determination.


 


Participant.  As defined in Section 17.1(d).


 


PBGC.  The Pension Benefit Guaranty Corporation created
by §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 Liens.  Liens permitted by Section 7.3.


 


13

















 


Person.  Any individual, Entity or Government
Authority.


 


Prime Rate.  The
rate of interest adopted by the Administrative Agent as its reference rate for
the determination of interest rates for loans of varying maturities in United
States dollars to United States residents of varying degrees of
creditworthiness and being quoted at such time by the Administrative Agent as
its “prime rate”.  The “prime rate” is a
rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. 
Any change in such rate announced by Bank of America shall take effect
at the opening of business on the day specified in the public announcement of
such change.


 


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.


 


RCRA.  As defined in Section 5.17(a).


 


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 or in this Credit Agreement.


 


Register.  As defined in Section 17.1(c).


 


Related Parties.  With
respect to any Person, such Person’s Affiliates and the partners, directors,
officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.


 


Reorganization and Reorganize.  As defined in Section 7.2.


 


SARA.  As defined in Section 5.17(a).


 


Securities Trading Activities.  The activities in the ordinary course of
business of a Broker-Dealer Subsidiary, including, without limitation, acting
as a broker for clients and/or as a dealer in the purchase and sale of
securities traded on exchanges or in the over-the-counter markets, entering
into securities repurchase agreements and reverse repurchase agreements,
securities lending and borrowing and securities clearing, either through agents
or directly through clearing systems.


 


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


 


14

















 


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 $1,200,000,000.


 


S&P Rating.  With respect to any Entity, the rating
assigned to long-term senior unsecured debt issued by such Entity by Standard &
Poor’s Rating Service from time to time in effect or, if such Entity does not
issue long-term senior unsecured debt rated by Standard & Poor’s
Rating Service, the counterparty rating assigned by Standard & Poor’s
Rating Service from time to time in effect.


 


SPC. 
As defined in Section 17.6.


 


Subsidiary.  Any
Entity (i) 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 of such Entity, or
(ii) that is consolidated with such Entity in accordance with Financial
Accounting Standards Board Interpretation No. 46-Revised. 
Notwithstanding the foregoing, the term “Subsidiary” shall not include
any Entity that is an investment company, investment fund or similar Entity
that is managed or advised by the Borrower or any Subsidiary of the Borrower
and in which the Borrower’s or such Subsidiary’s ownership of Voting Equity
Securities is a function of its role as manager or adviser (whether as general
partner or otherwise) rather than its economic or beneficial interest in the
entity.  Unless otherwise provided
herein, any reference to a “Subsidiary” shall mean a Subsidiary of the
Borrower.


 


Swap Contract.  A Swap Contract is:  (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master agreement,
and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed
by, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., or any International Foreign Exchange
Master Agreement (any such master agreement, together with any related schedules,
a “Master Agreement”), including any such obligations or liabilities under any
Master Agreement.


 


Swap Termination Value.  In respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for
any date prior to the date referenced in clause (a), the amount(s) determined
as the mark-to-market value(s) for such Swap Contracts, as determined by the
Borrower based upon one or more mid-market or other readily available
quotations provided by one or more recognized dealers in such Swap Contracts
(which may include a Bank or any affiliate of a Bank).


 


Synthetic Lease Obligation.  The monetary obligation of a Person under a
so-called synthetic, off-balance sheet or tax retention lease, where such
transaction is considered borrowed


 


15

















 


money Indebtedness for
tax purposes but which is classified as an operating lease pursuant to GAAP.


 


Taxes.  All present or future taxes,
levies, imposts, duties, deductions, withholdings, assessments, fees or other
charges imposed by any Government Authority, including any interest, additions
to tax or penalties applicable thereto.


 


Termination Date.  The earlier of (a) the
Maturity Date and (b) the date of termination in whole of the Commitments
pursuant to Section 2.5(a) or 11.1.


 


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 $800,000,000.


 


12b-1 Fees.  All or any portion of (a) the
compensation or fees paid, payable, or expected to be payable to the Borrower
or any of its Subsidiaries for acting as the distributor of securities as
permitted under Rule 12b-l under the 1940 Act, (b) the contingent
deferred sales charges or redemption fees paid, payable, or expected to be paid
to the Borrower or any of its Subsidiaries, and (c) any right, title, or
interest in or to any such compensation or fees.


 


Type.  As to any Loan, its nature as a Federal Funds
Rate Loan, Alternate Base Rate Loan or LIBOR Loan, as the case may be.


 


Units.  Units representing assignments of beneficial
ownership of limited partnership interests in the Borrower.


 


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.


 


16

















 


(g)           All
terms not specifically defined herein or by GAAP, which terms are defined in
the Uniform Commercial Code as in effect in The State of New York, have the
meanings assigned to them therein.


 


(h)           Reference
to a particular “§”, Section, 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 10 hereof, each of the Banks
severally shall lend to the Borrower, and the Borrower may borrow, repay, and
reborrow from time to time between the Closing Date and the Maturity Date upon
notice by the Borrower to the Administrative Agent given in accordance with Section 2.8,
such sums as are requested by the Borrower up to a maximum aggregate principal
amount Outstanding (after giving effect to all amounts requested) at any one
time equal to such Bank’s Commitment, provided that the Outstanding amount of
the Loans (after giving effect to all amounts requested) shall not at any time
exceed the Total Commitment.  The 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 Loan and each borrowing hereunder shall constitute a
representation and warranty by the Borrower that the conditions set forth in Section 10
have been satisfied on the date of such request.


 


(b)           In
the event that, at any time when the conditions precedent for any Loan have
been satisfied, a Bank fails or refuses to fund its portion of such Loan, then,
until such time as such Bank has funded its portion of such Loan, or all of the
other Banks have received (in accordance with Section 13.3.3) payment in
full of the principal and interest due in respect of such Loan, such
non-funding Bank 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 long-term senior unsecured debt rating as of the last
Business Day of each calendar quarter.  The
facility fee shall be payable quarterly in arrears on the second 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 long-term senior unsecured debt rating in
effect as of any date of determination as follows:


 


17

















 




	
  Borrower’s

  S&P Rating/Moody’s Rating

  	
   

  	
  Facility Fee

  	
   

  
	
  >
  AA/Aa2

  	
   

  	
  0.050%

  	
   

  
	
  AA-, A+/Aa3, A1

  	
   

  	
  0.060%

  	
   

  
	
  A/A2

  	
   

  	
  0.070%

  	
   

  
	
  A-/A3

  	
   

  	
  0.080%

  	
   

  
	
  BBB+/Baa1

  	
   

  	
  0.090%

  	
   

  
	
  <
  BBB/Baa2 or no S&P Rating or Moody’s Rating

  	
   

  	
  0.125%

  	
   

  






 


Notwithstanding the
foregoing, (a) if there is a split in the debt ratings of only one level,
the facility fee of the higher debt rating shall apply and (b) if there is
a split in the debt ratings of more than one level, the facility fee that is
one level higher than the facility fee of the lower debt rating shall apply, in
any such case, subject, as applicable, to the provisions of Section 4.10
hereof.


 


2.3           Utilization
Fee.  For any calendar quarter in
which the average aggregate daily Outstanding balance of the Loans is greater
than 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 on the average aggregate Outstanding amount of the Loans during such
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 long-term senior unsecured debt
rating as of the last Business Day of each calendar quarter.  The utilization fee shall be payable on the
earlier of the second Business Day of a calendar quarter for any immediately
preceding 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.


 


The utilization fee shall
be calculated based upon the Borrower’s long-term senior unsecured debt rating
in effect as of any date of determination as follows:


 


	
  Borrower’s

  S&P Rating/Moody’s Rating

  	
   

  	
  Utilization Fee

  	
   

  
	
  >
  AA/Aa2

  	
   

  	
  0.050%

  	
   

  
	
  AA-, A+/Aa3, A1

  	
   

  	
  0.050%

  	
   

  
	
  A/A2

  	
   

  	
  0.050%

  	
   

  
	
  A-/A3

  	
   

  	
  0.050%

  	
   

  
	
  BBB+/Baa1

  	
   

  	
  0.100%

  	
   

  
	
  <
  BBB/Baa2 or no S&P Rating or Moody’s Rating

  	
   

  	
  0.125%

  	
   

  



 


18

















 


Notwithstanding the
foregoing, (a) if there is a split in the debt ratings of only one level,
the utilization fee of the higher debt rating shall
apply and (b) if there is a split in the debt ratings of more than one
level, the utilization fee that is one level higher than the utilization fee of
the lower debt rating shall apply, in any such case, subject, as applicable, to
the provisions of Section 4.10 hereof.


 


2.4           Other
Fees.  The Borrower shall pay the
fees described in the Fee Letter as and when the same become due and payable
pursuant to the terms of the Fee Letter.


 


2.5           Reduction
or Increase of Total Commitment.  (a) 
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
$10,000,000 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 2.5(a), the Administrative Agent will notify the Banks of
the substance thereof.  Upon the
effective date of any such reduction or termination, the Borrower shall pay to
the Administrative Agent for the respective accounts of the Banks the full
amount of any facility fee then accrued on the amount of the reduction.  No reduction or termination of the
Commitments may be reinstated.


 


(b) 
Increase of Total Commitment.  At
any time prior to the Termination Date the Borrower may, on the terms set forth
below, request that the Total Commitment hereunder be increased by an aggregate
amount of up to $200,000,000 in minimum increments of $25,000,000; provided,
however, that (i) an increase in the Total Commitment hereunder may
only be made at a time when no Default shall have occurred and be continuing
and (ii) in no event shall the Total Commitment hereunder exceed
$1,000,000,000.  In the event of such a
requested increase in the Total Commitment, any Bank or other financial
institution which the Borrower invites to become a Bank or to increase its
Commitment may set the amount of its Commitment at a level agreed to by the
Borrower; provided, that each such other financial institution shall be
reasonably acceptable to the Administrative Agent, and that the minimum
Commitment of each such other financial institution equals or exceeds
$10,000,000.  In the event that the
Borrower and one or more of the Banks (or other financial institutions) shall
agree upon such an increase in the Commitments (i) the Borrower, the
Administrative Agent and each Bank or other financial institution increasing
its Commitment or extending a new Commitment shall enter into a supplement to
this Agreement (each, a “Supplement”) substantially in the form of Exhibit I
setting forth, among other things, the amount of the increased Commitment of
such Bank or the new Commitment of such other financial institution, as
applicable, and (ii) the Borrower shall furnish, if requested, new or
amended and restated Notes, as applicable, to each financial institution that
is extending a new Commitment and each Bank that is increasing its
Commitment.  No such Supplement shall
require the approval or consent of any Bank whose Commitment is not being
increased.  Upon the execution and
delivery of such Supplements as provided above and the occurrence of the “Effective
Date” specified therein, and upon the Administrative Agent administering the
reallocation of the outstanding Loans ratably among the Banks after giving
effect to each such increase in the Commitments (and the payment by the
Borrower of any amounts under Section 4.9 if such Effective Date is not
the last day of an Interest Period for any outstanding Loan), and the delivery
of certified evidence of partnership authorization and a legal opinion in
substantially the form of Exhibit G hereto on behalf of the Borrower, this
Credit Agreement shall be deemed to be amended accordingly.


 


2.6           The
Notes; the Record.  Upon the request
of the Administrative Agent or any Bank, the Loans shall be evidenced by
separate promissory notes of the Borrower in substantially the form of Exhibit A
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 requesting a Note in a principal amount
equal to such


 


19

















 


Bank’s Commitment or, if less, the Outstanding amount
of all 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 Loan or at the time of receipt of any payment of principal
on such Bank’s Loans, an appropriate notation on such Bank’s Record reflecting
the making of such Loan or (as the case may be) the receipt of such
payment.  The Outstanding amount of the
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 Loans
when due.  In recognition of the fact
that the Loans may be made without having been evidenced by a written Note, the
Borrower hereby promises to pay to each Bank the principal amount of the Loans
made by such Bank, and accrued and unpaid interest and fees thereon, as the
same become due and payable in accordance with this Credit Agreement.


 


2.7           Interest
on Loans.


 


2.7.1        Interest
Rates.  Except as otherwise provided
in Section 4.10, the Loans shall bear interest as follows:


 


(a)           Each
Federal Funds Rate Loan shall bear interest at an annual rate equal to the
Federal Funds Rate as in effect from time to time while such Federal Funds Rate
Loan is Outstanding.


 


(b)           Each
LIBOR Loan shall bear interest for each Interest Period at an annual rate equal
to the LIBOR Rate for such Interest Period in effect from time to time during
such Interest Period.


 


(c)           Each
Alternate Base Rate Loan shall bear interest at an annual rate equal to the
Alternate Base Rate as in effect from time to time while such Alternate Base
Rate Loan is Outstanding.


 


2.7.2        Interest
Payment Dates.  The Borrower shall
pay all accrued interest on each Loan in arrears on each Interest Payment Date
with respect thereto.


 


2.8           Requests
for Loans.  The Borrower shall give
to the Administrative Agent written notice in the form of Exhibit B
hereto (or telephonic notice confirmed in a writing in the form of Exhibit C
hereto) of each 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 Federal Funds Rate Loan or Alternate Base Rate Loan and (b) three
(3) Business Days prior to the proposed Drawdown Date of any LIBOR
Loan.  Each such notice shall specify (i) the
principal amount of the Loan requested, (ii) the proposed Drawdown Date of
such Loan, (iii) the Type of such Loan, and (iv) the Interest Period
for such Loan if such Loan is a LIBOR 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 Loan requested from the Banks on the
proposed Drawdown Date.  Each Loan
Request shall be in a minimum aggregate amount of $3,000,000 or in an integral
multiple of $1,000,000 in excess thereof.


 


2.9           Conversion
Options.


 


2.9.1        Conversion
to LIBOR Loan.  The Borrower may
elect from time to time, subject to Section 2.11, to convert any
Outstanding Federal Funds Rate Loan or Alternate Base Rate Loan to a LIBOR
Loan, provided that (a) the Borrower shall give the Administrative
Agent


 


20

















 


at least three (3) Business Days’ prior written notice of such
election; and (b) no Federal Funds Rate Loan or Alternate Base Rate Loan
may be converted into a LIBOR 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 LIBOR Lending Office.  All or any
part of Outstanding Federal Funds Rate Loans or Alternate Base Rate Loans may
be converted into a LIBOR Loan as provided herein, provided that any partial
conversion shall be in an aggregate principal amount of $3,000,000 or an integral
multiple of $1,000,000 in excess thereof.


 


2.9.2        Continuation
of Type of Loan.


 


(a)           All
Federal Funds Rate Loans or Alternate Base Rate Loans shall continue as Federal
Funds Rate Loans or Alternate Base Rate Loans, as the case may be, until
converted into LIBOR Loans as provided in Section 2.9.1.


 


(b)           Any
LIBOR Loan may, subject to Section 2.11, be continued, in whole or in
part, as a LIBOR Loan upon the expiration of the Interest Period with respect
thereto, provided that (i) the Borrower shall give the
Administrative Agent at least three (3) Business Days’ prior written
notice of such election; (ii) no LIBOR Loan may be continued as such when
any Default or Event of Default has occurred and is continuing, but shall be
automatically converted to a Federal Funds 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 LIBOR
Loan shall be in an aggregate principal amount of $3,000,000 or an integral
multiple of $1,000,000 in excess thereof. 
Each notice of election of such continuance of a LIBOR 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 LIBOR Loan as
provided under this Section 2.9.2, the Borrower shall be deemed to have
requested a conversion of the affected LIBOR Loan to a Federal Funds 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 LIBOR Lending Office as appropriate.


 


2.9.3        LIBOR
Loans.  Any conversion to or from
LIBOR 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 LIBOR
Loans having the same Interest Period shall not be less than $3,000,000 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 D hereto (or shall be
given by telephone and confirmed by a writing in the form of Exhibit E
hereto).  Each such notice shall specify (a) the
principal amount and Type of the Loan subject thereto, (b) the date on


 


21

















 


which the current Interest Period of such Loan ends if such Loan is a
LIBOR Loan, and (c) the new Interest Period for such Loan if such Loan is
a LIBOR 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 Loans.


 


2.10.1      Funding
Procedures.  Not later than 1:00 p.m.
(Charlotte, North Carolina time) on the proposed Drawdown Date of any Loan,
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 Loan.  Upon receipt from each Bank of such amount,
and upon receipt of the documents required by Section 10 and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Administrative Agent will make available to the Borrower the
aggregate amount of such Loan 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
Loan 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 Loan, but no other Bank shall be liable
in respect of the failure of such Bank to make available such amount.


 


2.10.2      Funding
by Banks; Presumption by Administrative Agent.  Unless the Administrative Agent shall have
received notice from a Bank prior a Drawdown Date that such Bank will not make
available to the Administrative Agent such Bank’s share of such Loan, the
Administrative Agent may assume that such Bank has made such share available on
such Drawdown Date and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount.  In
such event, if a Bank has not in fact made its share of the applicable Loan
available to the Administrative Agent, then the applicable Bank and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount in immediately available funds with interest thereon,
for each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (A) in
the case of a payment to be made by such Bank, the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation and (B) in the case
of a payment to be made by the Borrower, the interest rate equal to the rate
payable on the Loans incurred by the Borrower (provided, if such Loans
are LIBOR Loans, the Borrower shall pay interest equal to the rate payable on
Federal Funds Rate Loans).  If the
Borrower and such Bank shall pay such interest to the Administrative Agent for
the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such
period.  If such Bank pays its share of
the applicable Loan to the Administrative Agent, then the amount so paid shall
constitute such Bank’s Loan included in such Loan Request.  Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Bank that shall have
failed to make such payment to the Administrative Agent.  A notice of the Administrative Agent to any
Bank or the Borrower with respect to any amount owing under this subsection 2.10.2
shall be conclusive, absent manifest error.


 


2.11         Limit
on Number of LIBOR Loans.  At no time
shall there be Outstanding LIBOR Loans having more than fifteen (15) different
Interest Periods.


 


22

















 


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 Total
Commitment shall terminate on the Maturity Date.


 


3.2           Mandatory
Repayments of Loans.


 


3.2.1        Loans
in Excess of Commitment.  If at any
time the sum of the Outstanding amount of the Loans exceeds the Total
Commitment, then the Borrower shall immediately pay the amount of such excess
to the Administrative Agent for application to the Loans.


 


3.2.2        Change
of Control.  Upon the occurrence of a
Change of Control or impending Change of Control:


 


(a)           the
Borrower shall notify the Administrative Agent and each Bank of such Change of
Control or impending Change of Control as provided in Section 6.5.4;


 


(b)           the
Commitments (but not the right of the Borrower to convert and continue Types of
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 6.5.4) through the later to occur
of (i) the Change of Control Date or (ii) the date forty (40) days
after the date of such notice from the Borrower (the “Suspension Period”)
and neither the Banks nor the Administrative Agent 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, all accrued and unpaid interest thereon, and any other amounts owing
under the Loan Documents;


 


(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 Loans, all accrued and unpaid interest thereon,
and any other amounts owing under the Loan Documents, (provided that (i) any
Bank may require the Borrower to postpone prepayment of a LIBOR Loan until the
last day of the Interest Period with respect to such LIBOR Loan, and (ii) if
any Bank elects to require prepayment of a LIBOR 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


 


23

















 


such LIBOR Loan, such Bank shall not be entitled to receive any amounts
payable under Section 4.9 in respect of the prepayment of such LIBOR
Loan).


 


Upon any demand for payment by any Bank under this Section 3.2.2,
the Commitment hereunder provided by such Bank shall terminate, and such Bank
shall be relieved of all further obligations to make Loans to the
Borrower.  At the end of the Suspension
Period referred to above, the Commitments shall be restored from all Banks that
have not made a demand for payment under this Section 3.2.2, and this
Credit Agreement and the other Loan Documents shall remain in full force and
effect among the Borrower, such Banks and the Administrative Agent, 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 Loans.  The Borrower
shall have the right, at its election, to repay the Outstanding amount of the
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 LIBOR Loans
pursuant to this Section 3.3 made on a date other than the last day of the
Interest Period relating thereto shall be subject to customary breakage charges
as provided in Section 4.9.  The
Borrower shall give the Administrative Agent, no later than 10:00 a.m.,
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
Federal Funds Rate Loans or Alternate Base Rate Loans, and two (2) Business
Days’ notice of any proposed repayment pursuant to this Section 3.3 of
LIBOR Loans, in each case, specifying the proposed date of payment of Loans and
the principal amount to be paid.  Each
such partial repayment of the 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 Alternate Base Rate Loans, second to the principal of Federal
Funds Rate Loans and third to the principal of LIBOR 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 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 2.8,
subject to the conditions of Section 10.


 


4.             CERTAIN
GENERAL PROVISIONS.


 


4.1           Application
of Payments.  Except as otherwise
provided in this Credit Agreement, all payments in respect of any Loan shall be
applied first to accrued and unpaid interest on such Loan and second to the
Outstanding principal of such Loan.


 


4.2           Funds
for Payments.


 


4.2.1        Payments
to Administrative Agent.  All
payments of principal, interest, commitment fees, and any other amounts due
hereunder or under any of the other Loan Documents shall be made to the
Administrative Agent, for the respective accounts of the Banks and the
Administrative Agent, at the Administrative Agent’s Head Office, or at such
other location that the Administrative Agent may from time to time designate,
in each case in immediately available funds or directly from the proceeds of
Loans.


 


4.2.2        No
Offset.  All payments by the Borrower
hereunder and under any of the other Loan Documents shall be made without
setoff or counterclaim.


 


24

















 


4.2.3        Fees
Non-Refundable.  Except as expressly
set forth herein, all fees payable hereunder are non-refundable, provided that (a) if any of the Banks is
finally adjudicated or is found in final arbitration proceedings to have been
grossly negligent or to have committed willful misconduct with respect to the
transactions contemplated hereby in any material respect, 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 finally found to have been grossly negligent or to have committed
willful misconduct, the amount of any administrative agent’s fee paid or
prepaid by the Borrower and attributable to the period from and after the date
on which such grossly negligent conduct or willful misconduct occurred shall be
refunded.


 


4.3           Computations.  All computations of interest with respect to Alternate
Base Rate Loans shall be based on a year of 365/366 days, and all computations
of interest with respect to both Federal Funds Rate Loans and LIBOR Loans shall
be based on a year of 360 days, and in each case paid for the actual number of
days elapsed.  Except as otherwise
provided in the definition of the term “Interest Period” with respect to LIBOR
Loans, whenever a payment hereunder or under any of the other Loan Documents
becomes due on a day that is not a Business Day, the due date for such payment
shall be extended to the next succeeding Business Day, and interest shall
accrue during such extension.


 


4.4           Inability
to Determine LIBOR Rate Basis.  In
the event, prior to the commencement of any Interest Period relating to any
LIBOR Loan, the Administrative Agent shall determine that adequate and
reasonable methods do not exist for ascertaining the LIBOR Rate Basis that
would otherwise determine the rate of interest to be applicable to any LIBOR
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 LIBOR Loans shall be automatically withdrawn
and shall be deemed a request for Federal Funds Rate Loans, (b) each LIBOR
Loan will automatically, on the last day of the then current Interest Period
relating thereto, become a Federal Funds Rate Loan, and (c) the
obligations of the Banks to make LIBOR Loans shall be suspended until the
Administrative Agent determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Administrative Agent shall so notify
the Borrower and the Banks.


 


4.5           Illegality.  Notwithstanding any other provisions herein,
if any present or future Government Mandate shall make it unlawful for any Bank
to make or maintain LIBOR 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 LIBOR Loans or convert Federal Funds Rate Loans
or Alternate Base Rate Loans to LIBOR Loans shall forthwith be suspended, and (b) such
Bank’s Loans then Outstanding as LIBOR Loans, if any, shall be converted
automatically to Federal Funds Rate Loans on the last day of each then existing
Interest Period applicable to such LIBOR Loans or within such earlier period
after the occurrence of such circumstances as may be required by Government
Mandate.  The Borrower shall promptly pay
the Administrative Agent for the account of such Bank, upon demand by such
Bank, any additional amounts necessary to compensate such Bank for any costs
incurred by such Bank in making any conversion in accordance with this Section 4.5
other than on the last day of an Interest Period, including any interest or
fees payable by such Bank to lenders of funds obtained by it in order to make
or maintain its LIBOR Loans hereunder.


 


25

















 


4.6           Additional
Costs, Etc.  If any future applicable,
or any change in the application or interpretation of any present applicable, Government
Mandate (whether or not having the force of law), shall:


 


(a)           subject
any Bank or the Administrative Agent to any tax, levy, impost, duty, charge,
fee, deduction, or withholding of any nature with respect to this Credit
Agreement, the other Loan Documents, such Bank’s Commitment, or the Loans
(other than Indemnified Taxes and Other Taxes covered by Section 4.11 and
Excluded Taxes), or


 


(b)           materially
change the basis of taxation (except for Excluded Taxes) of payments to any
Bank of the principal of or the interest on any Loans or any other amounts
payable to any Bank or the Administrative Agent under this Credit Agreement or
the other Loan Documents, or


 


(c)           impose,
increase, or render applicable (other than to the extent specifically provided
for elsewhere in this Credit Agreement) any special deposit, reserve,
assessment, liquidity, capital adequacy, or other similar requirements (whether
or not having the force of law) against assets held by, or deposits in or for
the account of, or loans by, or commitments of an office of any Bank, or


 


(d)           impose
on any Bank or the Administrative Agent any other conditions or requirements
with respect to this Credit Agreement, the other Loan Documents, the Loans,
such Bank’s Commitment, or any class of loans or commitments of which any of
the Loans or such Bank’s Commitment forms a part, and the result of any of the
foregoing is:


 


(i)            to
increase by an amount deemed by such Bank to be material with respect to the
cost to any Bank of making, funding, issuing, renewing, extending, or
maintaining any of the Loans or such Bank’s Commitment, or


 


(ii)           to
reduce, by an amount deemed by such Bank or the Administrative Agent, as the
case may be, to be material, the amount of principal, interest, or other amount
payable to such Bank or the Administrative Agent hereunder on account of such
Bank’s Commitment, or any of the Loans, or


 


(iii)          to
require such Bank or the Administrative Agent to make any payment that, but for
such conditions or requirements described in clauses (a) through (d),
would not be payable hereunder, or forego any interest or other sum that, but
for such conditions or requirements described in clauses (a) through (d),
would be payable to such Bank or the Administrative Agent hereunder, in any
case the amount of which payment or foregone interest or other sum is deemed by
such Bank or the Administrative Agent, as the case may be, to be material and
is calculated by reference to the gross amount of any sum receivable or deemed
received by such Bank or (as the case may be) the Administrative Agent from the
Borrower hereunder, then, and in each such case, the Borrower will, upon demand
made by such Bank or (as the case may be) the Administrative Agent at any time
and from time to time (such demand to be made in any case not later than the
first to occur of (I) the date one year after such event described in clause
(i), (ii), or (iii) giving rise to such demand, and (II) the date ninety
(90) days after both the payment in full of all Outstanding Loans, and the
termination of the Commitments) and as often as the occasion therefor may
arise, pay to such Bank or the Administrative Agent such additional amounts as
will be sufficient to compensate such Bank or the Administrative Agent for such
additional cost, reduction, payment, foregone


 


26

















 


interest or other sum.  Subject
to the terms specified above in this Section 4.6, the obligations of the
Borrower under this Section 4.6 shall survive repayment of the Loans and
termination of the Commitments.


 


4.7           Capital
Adequacy.  If after the date hereof
any Bank or the Administrative Agent determines that (a) the adoption of
or change in any Government Mandate (whether or not having the force of law)
regarding capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by any Government Authority
with appropriate jurisdiction, or (b) compliance by such Bank or the
Administrative Agent, or any corporation controlling such Bank or the
Administrative Agent, with any Government Mandate (whether or not having the
force of law) has the effect of reducing the return on such Bank’s or the
Administrative Agent’s commitment with respect to any Loans to a level below
that which such Bank or (as the case may be) the Administrative Agent could
have achieved but for such adoption, change, or compliance (taking into
consideration such Bank’s or the Administrative Agent’s then existing policies
with respect to capital adequacy and assuming full utilization of such Entity’s
capital) by any amount reasonably deemed by such Bank or (as the case may be)
the Administrative Agent to be material, then such Bank or the Administrative
Agent may notify the Borrower of such fact. 
To the extent that the amount of such reduction in the return on capital
is not reflected in the Federal Funds Rate, the Borrower shall pay such Bank or
(as the case may be) the Administrative Agent for the amount of such reduction
in the return on capital as and when such reduction is determined upon
presentation by such Bank or (as the case may be) the Administrative Agent of a
certificate in accordance with Section 4.8 hereof (but in any case not
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 Commitments the date ninety (90) days after both the
payment in full of all Outstanding Loans and termination of the Commitments).  Each Bank shall allocate such cost increases
among its customers in good faith and on an equitable basis.  Subject to the terms specified above in this Section 4.7,
the obligations of the Borrower under this Section 4.7 shall survive
repayment of the Loans and termination of the Commitments.


 


4.8           Certificate.  A certificate setting forth any additional
amounts payable pursuant to Section 4.6 or Section 4.7 and a brief
explanation of such amounts which are due and in reasonable detail the basis of
the calculation and allocation thereof, submitted by any Bank or the
Administrative Agent to the Borrower, shall be conclusive evidence, absent
manifest error, that such amounts are due and owing.


 


4.9           Indemnity.  The Borrower shall indemnify and hold
harmless each Bank from and against any loss, cost, or expense (excluding loss
of anticipated profits) that such Bank may sustain or incur as a consequence of
(a) default by the Borrower in payment of the principal amount of or any
interest on any LIBOR 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 LIBOR 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 LIBOR Loan, the making of any conversion of any such Loan to a
Federal Funds Rate Loan or an Alternate Base Rate Loan or the receipt by any
Bank of funds in respect of any such Loan in accordance with Section 2.5(b) on
a day that is not the last day of the applicable Interest Period with respect
thereto, including interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain any such Loans.  The obligations of the Borrower under this Section 4.9
shall survive repayment of the Loans and termination of the Commitments.


 


4.10         Interest
After Default.  All amounts Outstanding
under the Loan Documents that are not paid when due, including all overdue
principal and (to the extent permitted by applicable Government Mandate)
interest and all other overdue amounts (after giving effect to any applicable
grace period), shall


 


27

















 


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 in the case of principal and two
percent (2%) above the Alternate Base Rate in the case of other amounts payable
hereunder.  Any interest accruing under
this section on overdue principal or interest shall be due and payable
upon demand.


 


4.11         Taxes.


 


(a)           Payments
Free of Taxes.  Any and all payments
by or on account of any obligation of the Borrower hereunder or under any other
Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if
the Borrower shall be required by applicable law to deduct any Indemnified
Taxes (including any Other Taxes) from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 4.11) the Administrative Agent or any Bank, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall timely pay the full amount deducted to the relevant Government
Authority in accordance with applicable law.


 


(b)           Payment
of Other Taxes by the Borrower. 
Without limiting the provisions of subsection (a) above, the
Borrower shall timely pay any Other Taxes to the relevant Government Authority
in accordance with applicable law.


 


(c)           Indemnification by the Borrower.  The
Borrower shall indemnify the Administrative Agent and each Bank, within 10 days
after demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Bank, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Government Authority. 
A certificate as to the amount of such payment or liability delivered to
the Borrower by a Bank (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Bank, shall be
conclusive absent manifest error.


 


(d)           Evidence of Payments.  As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by
the Borrower to a Government Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Government Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


(e)           Status of Banks.  Any
Foreign Bank that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Borrower is resident for tax
purposes, or any treaty to which such jurisdiction is a party, with respect to
payments hereunder or under any other Loan Document shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without withholding
or at a reduced rate of withholding.  In
addition, any Bank, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will


 


28

















 


enable
the Borrower or the Administrative Agent to determine whether or not such Bank
is subject to backup withholding or information reporting requirements.


 


Without limiting the generality of the foregoing, if the Borrower is
resident for tax purposes in the United States, any Foreign Bank shall deliver
to the Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign
Bank becomes a Bank under this Credit Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Bank is legally entitled to do so), whichever of the
following is applicable:


 


(i)            duly
completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is
a party,


 


(ii)           duly
completed copies of Internal Revenue Service Form W-8ECI,


 


(iii)          in
the case of a Foreign Bank claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (A) a certificate to
the effect that such Foreign Bank is not (1) a “bank” within the meaning
of section 881(c)(3)(A) of the Code, (2) a “10 percent
shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (3) a “controlled foreign corporation” described in section 881(c)(3)(C) of
the Code and (B) duly completed copies of Internal Revenue Service Form W-8BEN,
or


 


(iv)          any
other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by applicable law to
permit the Borrower to determine the withholding or deduction required to be
made.


 


(f)            Treatment
of Certain Refunds.  If the
Administrative Agent or any Bank, in its sole discretion, that it has received
a refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 4.11, it shall pay to the Borrower an amount
equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section with respect
to the Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket
expenses of the Administrative Agent or such Bank, as the case may be, and
without interest (other than any interest paid by the relevant Government
Authority with respect to such refund), provided that the Borrower upon
the request of the Administrative Agent or such Bank, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Government Authority) to the Administrative
Agent or such Bank if the Administrative Agent or such Bank is required to
repay such refund to such Government Authority. 
This subsection shall not be construed to require the
Administrative Agent or any Bank to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.


 


4.12         Mitigation
and Replacement.


 


(a)           Mitigation.  At the request of the Borrower, any Bank
claiming any additional amounts payable pursuant to Section 4.6, 4.7 or
4.11 or invoking the provisions of Section 4.5 shall use reasonable
efforts to change the jurisdiction of its Applicable Lending Office if the
making of such a change would avoid the need for, or reduce the amount of, any


 


29

















 


such additional amounts which may thereafter accrue and such change
would not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank.


 


(b)           Replacement.  In the event that a Bank demands payment from
the Borrower for amounts owing pursuant to Sections 4.6, 4.7 or 4.11 or invokes
the provisions of Section 4.5, the Borrower may, upon payment of such
amounts and subject to the requirements of Section 17, substitute for such
Bank another financial institution, which financial institution shall be an
Eligible Assignee and shall assume the Commitments of such Bank and purchase
the Outstanding Loans held by such Bank in accordance with Section 17, provided,
however, that (i) the Borrower shall have satisfied all of its
obligations in connection with the Loan Documents with respect to such Bank and
(ii) if such assignee is not a Bank (A) such assignee is reasonably
acceptable to the Administrative Agent and (B) the Borrower shall have
paid the Administrative Agent a $3,500 administrative fee.


 


5.             REPRESENTATIONS
AND WARRANTIES.


 


The Borrower represents
and warrants to the Banks and the Administrative Agent as follows:


 


5.1           Corporate
Authority.


 


5.1.1        Incorporation;
Good Standing.  Each of the Borrower,
its Subsidiaries, and the General Partner (a) is a corporation, limited
partnership, general partnership, trust or limited liability company, as the
case may be, duly organized, validly existing, and, if applicable, in good
standing, under the laws of its jurisdiction of organization, (b) has all
requisite corporate, partnership or equivalent power to own its material
properties and conduct its material business as now conducted and as presently
contemplated, and (c) is, if applicable, in good standing as a foreign
corporation, limited partnership, general partnership, trust or limited
liability company, 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 Adverse Effect.


 


5.1.2        Authorization.  The execution, delivery, and performance of
this Credit Agreement and the other Loan Documents to which the Borrower, any
of its Subsidiaries, or the General Partner is or is to become a party and the
transactions contemplated hereby and thereby (a) are within the corporate,
partnership, limited liability company or other equivalent power of each such
Entity, (b) have been duly authorized by all necessary corporate,
partnership, limited liability company or other applicable 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, the limited partnership certificate or agreement,
or its governing documents in the case of any general partnership, limited
liability company or trust, 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 Adverse Effect.


 


5.1.3        Enforceability.  The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower, any of its
Subsidiaries, or the General Partner is or is to become a party will result in
valid and legally binding obligations of such Person enforceable against it in
accordance with the respective terms and provisions hereof and thereof, except
as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium, or


 


30

















 


other laws relating to or affecting generally the enforcement of
creditors’ rights and by general principles of equity, regardless of whether
enforcement is sought in a Proceeding in equity or at law.


 


5.1.4        Equity
Securities.  The General Partner is
the only general partner of the Borrower. 
All of the outstanding Equity Securities of the Borrower are validly
issued, fully paid, and non-assessable.


 


5.2           Governmental
Approvals.  The execution, delivery,
and performance by the Borrower, its Subsidiaries, and the General Partner of
this Credit Agreement and the other Loan Documents to which the Borrower, any
of its Subsidiaries, or the General Partner is or is to become a party and the
transactions contemplated hereby and thereby do not require the approval or
consent of, or filing with, any Government Authority other than those already
obtained and set forth on Schedule 5.2.


 


5.3           Liens;
Leases.  The assets reflected in the
consolidated balance sheet of the Borrower dated as of December 31, 2004,
and delivered to the Administrative Agent and the Banks under Section 5.4
are subject to no Liens except Permitted Liens. 
Each of the Borrower and its Subsidiaries enjoys quiet possession under
all leases relating to Real Estate or personal property to which it is party as
a lessee, and each such lease is Fully Effective.


 


5.4           Financial
Statements.  There has been furnished
to the Administrative Agent and each of the Banks (a) a consolidated
balance sheet of the Borrower as at December 31, 2004, 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 September 30, 2005, 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 a manner consistent with the accounting practices and policies employed with
respect to the audited financial statements reported in the Borrower’s most
recent Form 10-K filed with the Securities and Exchange Commission and
prepared in accordance with Rule 10-01 of Regulation S-X of the Securities
and Exchange Commission, and contain all adjustments necessary for a fair
presentation of (A) the results of operations of the Borrower for the
periods covered thereby, (B) the financial position of the Borrower at the
date thereof, and (C) the cash flows of the Borrower for periods covered
thereby (subject to year-end adjustments). 
There are no contingent liabilities of the Borrower or the Consolidated
Subsidiaries as of such dates involving material amounts, known to the
executive management of the Borrower that (aa) should have been disclosed in
said balance sheets or the related notes thereto in accordance with GAAP and
the rules and regulations of the Securities and Exchange Commission, and
(bb) were not so disclosed.


 


5.5           No
Material Changes, Etc.  No change in
the Business of the Borrower and its Consolidated Subsidiaries, taken as a
whole, has occurred since December 31, 2004 that has resulted in a
Material Adverse Effect.


 


5.6           Permits.  The Borrower and its Subsidiaries have all
Permits necessary or appropriate for them to conduct their Business, except
where the failure to have such Permits would not be likely to have a Material
Adverse Effect.  All of such Permits are
in full force and effect.  Without
limiting the


 


31

















 


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 Adverse 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 Adverse 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 Adverse Effect.


 


5.7           Litigation.  There is no Proceeding of any kind pending or
threatened, in writing, against the Borrower, any of its Subsidiaries, or the
General Partner that questions the validity of this Credit Agreement or any of
the other Loan Documents, or any action taken or to be taken pursuant hereto or
thereto.  Except as may be set forth in
information provided pursuant to Section 6.4 hereof or as otherwise
disclosed by the Borrower to the Banks, there is no Proceeding of any kind
pending or threatened, in writing, against the Borrower, any of its
Subsidiaries, or the General Partner that, if adversely determined, is
reasonably likely to, either in any case or in the aggregate, result in a
Material Adverse Effect or impair or prevent the Borrower’s performance and
observance of its obligations under this Credit Agreement or the other Loan
Documents.


 


5.8           Material
Contracts.  Except as would not be
likely to have a Material Adverse Effect, each Contract to which any of the
Borrower and its Subsidiaries is party or subject, or by which any of their respective
assets are bound (including investment advisory contracts and investment
company distribution plans) (a) is Fully Effective, (b) is not
subject to any default or event of default with respect to the Borrower, any of
its Subsidiaries or, to the best knowledge of the executive management of the
Borrower, any other party, (c) is not subject to any notice of termination
given or received by the Borrower or any of its Subsidiaries, and (d) is,
to the best knowledge of the executive management of the Borrower, the legal,
valid, and binding obligation of each party thereto other than the Borrower and
its Subsidiaries enforceable against such parties according to its terms.


 


5.9           Compliance
with Other Instruments, Laws, Etc. 
None of the Borrower, its Subsidiaries, and the General Partner is, in
any respect material to the Borrower and its Consolidated Subsidiaries taken as
a whole, in violation of or default under (a) any provision of its
certificate of incorporation or by-laws, or its certificate of limited
partnership or agreement of limited partnership, or its governing documents in
the case of any general partnership, as the case may be, (b) any Contract
to which it is or may be subject or by which it or any of its properties are or
may be bound, or (c) any Government Mandate, including Government Mandates
relating to occupational safety and employment matters.


 


5.10         Tax
Status.  The Borrower and its
Subsidiaries (a) have made or filed all federal and state income and all
other tax returns, reports, and declarations required by any Government
Authority to which any of them is subject, except where the failure to make or
file the same would not be likely to have a Material Adverse 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 Adverse 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


 


32

















 


be due from the Borrower or any of its Subsidiaries by
any Government Authority, and the executive management of the Borrower knows of
no basis for any such claim.


 


5.11         No
Event of Default.  No Default or
Event of Default has occurred and is continuing.


 


5.12         Investment
Company Act.  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.


 


5.13         Insurance.  The Borrower and its Subsidiaries maintain
insurance with financially sound and reputable insurers in such coverage
amounts, against such risks, with such deductibles and upon such other terms,
or are self-insured in respect of such risks (with appropriate reserves to the
extent required by GAAP), as is reasonable and customary for firms engaged in
businesses similar to those of the Borrower and its Subsidiaries.  All policies of insurance maintained by the
Borrower or its Subsidiaries are Fully Effective.  All premiums due on such policies have been
paid or accrued on the books of the Borrower or its Subsidiaries, as
appropriate.


 


5.14         Certain
Transactions.  Except in connection
with transactions occurring in the ordinary course of business, and, taking
into account the totality of the relationships involved, with respect to
transactions occurring on fair and reasonable terms no less favorable to the
Borrower and its Consolidated Subsidiaries taken as a whole than would be
obtained in comparable arms’ length transactions with Persons that are not
Affiliates of the Borrower or its Subsidiaries, none of the officers,
directors, partners, or employees of the Borrower or any of its Subsidiaries,
or, to the knowledge of the executive management of the Borrower, any Entity
(other than a Subsidiary) in which any such officer, director, partner, or
employee has a substantial interest or is an officer, director, trustee, or
partner, is at present a party to any transaction with the Borrower or any of
its Subsidiaries (other than for or in connection with services as officers,
directors, partners, or employees, as the case may be), including any Contract
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
such officer, director, partner, employee, or Entity.


 


5.15         Employee
Benefit Plans.  Each contribution
required to be made to a Guaranteed Pension Plan, whether required to be made
to avoid the incurrence of an accumulated funding deficiency, the notice or
lien provisions of §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 §4001 of ERISA did not
exceed the aggregate value of the assets of all such Guaranteed Pension Plans
by more than $50,000,000, disregarding for this purpose the benefit liabilities
and assets of any Guaranteed Pension Plan with assets in excess of benefit
liabilities.


 


5.16         Regulations
U and X.  The proceeds of the Loans
shall be used by the Borrower for general partnership purposes, including,
without limitation, for working capital purposes and the support of the
Borrower’s issuance of commercial paper. 
No portion of any Loan is to be used for the purpose of purchasing or
carrying any “margin security” or “margin stock” as such terms are used in
Regulations U and X of the Board of Governors of the Federal Reserve System, 12
C.F.R. Parts 221 and 224.


 


33

















 


5.17         Environmental
Compliance.  To the best of the
Borrower’s knowledge:


 


(a)           none
of the Borrower, its Subsidiaries, the General Partner, and any operator of the
Real Estate or any operations thereon is in violation, or alleged violation, of
any Government Mandate or Permit pertaining to environmental, safety or public
health matters, including the Resource Conservation and Recovery Act (“RCRA”),
the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986 (“SARA”),
the Federal Clean Water Act, the Federal Clean Air Act, and the Toxic
Substances Control Act (hereinafter “Environmental Laws”), which
violation would be likely to have a material adverse effect on the environment
or a Material Adverse 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. §9601(5), any hazardous substances as defined by 42 U.S.C.
§9601(14), any pollutant or contaminant as defined by 42 U.S.C. §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


 


34

















 


(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.


 


5.18         Funded
Debt.  Schedule 5.19 sets
forth as of December 31, 2005 all outstanding Funded Debt of the Borrower
and its Subsidiaries.


 


5.19         General.  The Borrower’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2004, and Quarterly Reports on Form 10-Q
referred to in Section 5.4 (a) conform in all material respects to
the requirements of the Securities Exchange Act of 1934, as amended, and to all
applicable rules and regulations of the Securities and Exchange
Commission, and (b) as amended by interim filings, do not contain an
untrue statement of any material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances in which they are made, not misleading.


 


6.             AFFIRMATIVE
COVENANTS OF THE BORROWER.


 


The Borrower covenants
and agrees that, so long as any Loan or any Note is Outstanding or any Bank has
any obligation to make any Loans:


 


6.1           Punctual
Payment.  The Borrower will duly and
punctually pay or cause to be paid the principal and interest on the Loans, the
facility fee, the utilization fee, and all other amounts provided for in this
Credit Agreement and the other Loan Documents to which the Borrower is party,
all in accordance with the terms of this Credit Agreement and such other Loan
Documents.


 


6.2           Maintenance
of Office.  The Borrower will
maintain its chief executive office in New York, New York, or at such other
place in the United States of America as the Borrower shall designate upon
prior written notice to the Administrative Agent, where notices, presentations,
and demands to or upon the Borrower in respect of the Loan Documents may be
given or made.


 


6.3           Records
and Accounts.  The Borrower will, and
will cause each of its Subsidiaries to, keep complete and accurate records and
books of account.


 


6.4           Financial
Statements, Certificates, and Information. 
The Borrower will deliver to each of the Banks:


 


(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, listing each Consolidated
Subsidiary and each Excluded Fund, as at the end of such fiscal year;


 


(iii)          the
consolidated statement of income and consolidated statement of cash flows of
the Borrower for such fiscal year; and


 


35

















 


(iv)          the
consolidating statement of income only (and not the consolidating statements of
cash flow) of the Borrower, listing
each Consolidated Subsidiary and each Excluded Fund for such fiscal year.


 


Each of the balance sheets and statements delivered under this Section 6.4(a) shall
(I) set forth in comparative form the figures for the previous fiscal year;
(II) be in reasonable detail and prepared in accordance with GAAP based on the
records and books of account maintained as provided in Section 6.3; (III)
as to items (i) and (iii) above, include footnotes or otherwise be
accompanied by information outlining in sufficient detail reasonably
satisfactory to the Administrative Agent the effect of consolidating Excluded
Funds, if applicable, and be accompanied by (or be delivered concurrently with
the financial statements under this Section 6.4(a)) 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 consolidated financial position of the Borrower on the date thereof and
consolidated results of operations and consolidated cash flows of the Borrower
for the periods covered thereby; and (IV) as to items (i) and (iii) above,
be certified, without limitation as to scope, by KPMG LLP or another firm of
independent certified public accountants reasonably satisfactory to the
Administrative Agent, and shall be accompanied by (or be delivered concurrently
with the financial statements under this Section 6.4(a)) a written
statement from such accountants to the effect that in connection with their
audit of such financial statements nothing has come to their attention that
caused them to believe that the Borrower has failed to comply with the terms,
covenants, provisions or conditions of Section 6.3, Section 7, and Section 8
of this Credit Agreement as to accounting matters (provided that such
accountants may also state that the audit was not directed primarily toward
obtaining knowledge of such noncompliance), or, if such accountants shall have
obtained knowledge of any such noncompliance, they shall disclose in such statement
any such noncompliance; provided that such accountants shall not be liable to
the Banks for failure to obtain knowledge of any such noncompliance;


 


(b)           as
soon as practicable, but in any event not later than fifty (50) days after the
end of the first three fiscal quarters of each fiscal year of the Borrower, (i) the
unaudited interim condensed consolidated balance sheet of the Borrower as at
the end of such fiscal quarter, and (ii) the unaudited interim condensed
consolidated statement of income and unaudited interim condensed consolidated
statement of cash flow of the Borrower for such fiscal quarter and for the
portion of the Borrower’s fiscal year then elapsed, all in reasonable detail
and, with respect to clauses (i) and (ii), prepared in a manner consistent
with the accounting practices and policies employed with respect to the audited
financial statements reported in the Borrower’s most recent Form 10-K
filed with the Securities and Exchange Commission (subject to the application
of accounting principles as of the implementation date of, and with respect to,
Financial Accounting Standards Board Interpretative No. 46-Revised) and
prepared in accordance with Rule 10-01 of Regulation S-X of the Securities
and Exchange Commission, and including footnotes or otherwise accompanied by
information outlining in sufficient detail reasonably satisfactory to the
Administrative Agent the effect of consolidating Excluded Funds, if applicable,
and concurrently therewith 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 F
hereto and setting forth in


 


36

















 


reasonable detail computations evidencing compliance with the covenants
contained in Section 8 and (if applicable) reconciliations to reflect
changes in GAAP since December 31, 2004;


 


(d)           promptly
after the same are available, copies of each annual report, proxy, if any, or
financial statement or other report or communication sent to the holders of
Equity Securities of the Borrower who are not Affiliates of the Borrower, and
copies of all annual, interim and current reports and any other report of a
material nature (it being understood that filings in the ordinary course of
business pursuant to Sections 13(d), (f) and (g) of the Securities
Exchange Act of 1934 are not material) which the Borrower may file or be
required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto; 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.


 


(f)            Documents
required to be delivered pursuant to Section 6.4(a), (b), (c) or
(d) (to the extent any such financial statements, reports or proxy
statements are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower’s internet website at
www.alliancecapital.com or such other replacement website of which the Borrower
has given proper notice to the Administrative Agent and each Bank; or (ii) on
which such documents are posted on the Borrower’s behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Bank
and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Bank who requests, in writing, the Borrower to
deliver such paper copies until written request to cease delivering paper
copies is given by the Administrative Agent or such Bank and (ii) the
Borrower shall notify (which may be by facsimile or electronic mail) the
Administrative Agent and each Bank of the posting of any such documents.  Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the certificates
or statements of officers required by Section 6.4(a),  (b) or
(c)to the Administrative Agent. 
Except for such certificates or statements of officers, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Bank shall be solely responsible for requesting delivery
to it or maintaining its copies of such documents.


 


6.5           Notices.


 


6.5.1        Defaults.  The Borrower will promptly after the
executive management of the Borrower (which for purposes of this covenant shall
mean the chairman of the board, president, principal financial officer,
treasurer or general counsel of the Borrower) becomes aware thereof (and in any
case within three (3) Business Days after the executive management becomes
aware thereof) notify the Administrative Agent and each of the Banks in writing
of the occurrence of any Default or Event of Default.  If any Person shall give any notice in
writing of a claimed default (whether or not constituting an Event of Default)
under the Loan Documents or any other Contract relating to Funded Debt equal to
or in excess of $100,000,000 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


 


37

















 


to the Administrative Agent and each of the Banks, describing the
notice or action and the nature of the claimed default.


 


6.5.2        Environmental
Events.  The Borrower will promptly
give notice to the Administrative Agent and each of the Banks (a) of any
violation of any Environmental Law that the Borrower or any of its Subsidiaries
reports in writing, or that is reportable by any such Person in writing (or for
which any written report supplemental to any oral report is made) to any
Government Authority, and (b) upon becoming aware thereof, of any Proceeding,
including a notice from any Government Authority of potential environmental
liability, that has the potential, in the Borrower’s reasonable judgment, to
have a Material Adverse Effect.


 


6.5.3        Notice
of Proceedings and Judgments.  The
Borrower will give notice to the Administrative Agent and each of the Banks in
writing within ten (10) Business Days of the executive management of the
Borrower (as defined in Section 6.5.1) becoming aware of any Proceedings
pending affecting the Borrower or any of its Subsidiaries or to which the
Borrower or any of its Subsidiaries is or becomes a party that could reasonably
be expected by the Borrower to have a Material Adverse Effect (or of any
material adverse change in any such Proceedings of which the Borrower has previously
given notice).  Any such notice will
state the nature and status of such Proceedings.  The Borrower will give notice to the
Administrative Agent and each of the Banks, in writing, in form and detail
satisfactory to the Administrative Agent, within ten (10) Business Days of
any settlement or any judgment, final or otherwise, against the Borrower or any
of its Subsidiaries where the amount payable by the Borrower or any of its
Subsidiaries, after giving effect to insurance, is in excess of the lesser of
$50,000,000 or 10% of Consolidated Net Worth as at the end of the most recent
fiscal quarter.


 


6.5.4        Notice
of Change of Control.  In the event
the Borrower obtains knowledge of a Change of Control or an impending Change of
Control, the Borrower will promptly give written notice (a “Borrower Control
Change Notice”) of such fact to the Administrative Agent and the Banks at
least forty (40) days prior to the proposed Change of Control Date; provided,
however, that in no event shall such a Borrower Control Change Notice be
delivered to the Administrative Agent and the Banks more than three (3) Business
Days after the Change of Control Date. 
Without limiting the foregoing, upon obtaining actual knowledge of any
Change of Control or impending Change of Control, any of the Administrative
Agent and the Banks may (but in no case shall any of them be obligated to)
deliver written notice to the Borrower of such event, indicating that such
event requires the Borrower to prepay the Loans pursuant to Section 3.2.2
(and in any such notice a Bank may make demand for payment of its Loans under Section 3.2.2).  Promptly upon receipt of such notice, but in
no event later than five (5) Business Days after actual receipt thereof,
the Borrower will give written notice (such notice, together with a Borrower
Control Change Notice, a “Control Change Notice”) of such fact to the
Administrative Agent and the Banks (including the Bank that has so notified the
Borrower).  Any Control Change Notice
shall (a) describe the principal facts and circumstances of such Change of
Control known to the Borrower in reasonable detail (including the Change of
Control Date or, if the Borrower does not have knowledge of the Change of
Control Date, the Borrower’s best estimate of such Change of Control Date), (b) make
reference to Section 3.2.2 and the rights of the Banks to require the
Borrower to prepay the Loans on the terms and conditions provided for therein,
and (c) state that each Bank may make a demand for payment of its Loans by
providing written notice to the Borrower within fifteen (15) days after the
effective date of such Control Change Notice. 
In the event the Borrower shall not have designated the Change of
Control Date in its Control Change Notice, the Borrower shall keep the
Administrative Agent and the Banks informed as to any changes in the estimated
Change of Control Date and shall provide written


 


38

















 


notice to the Administrative Agent and the Banks specifying the Change
of Control Date promptly upon obtaining knowledge thereof.


 


6.6           Existence;
Business; Properties.


 


6.6.1        Legal
Existence.  The Borrower will, and
will cause each of its Consolidated Subsidiaries to do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights and franchises as a limited partnership, general partnership,
corporation, limited liability company or trust, 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 Adverse Effect, provided, however, this section shall
not prohibit any merger, consolidation, or reorganization of the Borrower or
any of its Subsidiaries permitted pursuant to Section 7.2.


 


6.6.2        Conduct
of Business.  Except as otherwise
disclosed to the Administrative Agent and the Banks in the Borrower’s Form 8-Ks
for the period prior to the Closing Date, the Borrower will, and will cause
each of its Consolidated Subsidiaries to, engage in business related to
investment management.


 


6.6.3        Maintenance
of Properties.  The Borrower will,
and will cause each of its Consolidated Subsidiaries to, cause its properties
used or useful in the conduct of its business and which are material to the
Business of the Borrower and its Consolidated Subsidiaries taken as a whole to
be maintained and kept in good condition, repair, and working order and
supplied with all necessary equipment, ordinary wear and tear excepted; provided
that nothing in this Section 6.6.3 shall prevent the Borrower or any of
its Consolidated Subsidiaries from discontinuing the operation and maintenance
of any properties if such discontinuance (i) is, in the judgment of the
Borrower or such Subsidiary, desirable in the conduct of its business, and (ii) does
not have a Material Adverse Effect.


 


6.6.4        Status
Under Securities Laws.  The Borrower
shall maintain its status as a registered “investment adviser”, under (a) the
Investment Advisers Act of 1940 and (b) under the laws of each state in
which such registration is required in connection with the investment advisory
business of the Borrower and, as to (b) only, where a failure to obtain
such registration would be likely to have a Material Adverse Effect.  The Borrower shall cause Alliance
Distributors (i) 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 Adverse Effect, and (ii) to maintain its membership in the
National Association of Securities Dealers, Inc.


 


6.7           Insurance.  The Borrower will, and will cause each of its
Consolidated Subsidiaries to, maintain with financially sound and reputable
insurers insurance with respect to its properties and business against such
casualties and contingencies, in such amounts, containing such terms, in such
forms, and for such periods, or shall be self-insured in respect of such risks
(with appropriate reserves to the extent required by GAAP), as shall be
customary in the industry for companies engaged in similar activities in
similar geographic areas.


 


6.8           Taxes.  The Borrower will, and will cause each of its
Consolidated Subsidiaries to, duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all taxes, assessments, and
other governmental charges imposed upon it or its real property, sales, and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or


 


39

















 


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 Adverse Effect; provided that any such tax, assessment,
charge, levy, or claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if the
Borrower or such Subsidiary shall have set aside on its books, if and to the
extent permitted by GAAP, adequate accruals with respect thereto.


 


6.9           Inspection
of Properties and Books, Etc.


 


6.9.1        General.  The Borrower shall, and shall cause each of
its Subsidiaries to, permit the Banks, through the Administrative Agent or any
of the Banks’ other designated representatives, to visit and inspect any of the
properties of the Borrower or any of its Subsidiaries, to examine the books of
account of the Borrower and its Subsidiaries (and to make copies thereof and
extracts therefrom), and to discuss the affairs, finances, and accounts of the
Borrower and its Subsidiaries with, and to be advised as to the same by, its
and their officers, all at such reasonable times and intervals as the
Administrative Agent or any Bank may request. 
The costs incurred by the Administrative Agent and the Banks in
connection with any such inspection shall be borne by the Banks making or
requesting the inspection (or, if the Administrative Agent makes an inspection
on its own initiative after notice to the Banks, by the Banks jointly, on a pro
rata basis according to their Outstanding Loans or, if no Loans are
Outstanding, their respective Commitments), except as otherwise provided by Section 14(f).  Any data and information that is obtained by
the Administrative Agent or any Bank pursuant to this Section 6.9.1 shall
be held subject to Section 19.


 


6.9.2        Communication
with Accountants.  The Borrower
authorizes the Administrative Agent and, if accompanied by the Administrative
Agent, the Banks to communicate directly with the Borrower’s independent
certified public accountants and authorizes such accountants to disclose to the
Administrative Agent and the Banks any and all financial statements and other
supporting financial documents and schedules, including copies of any
management letter with respect to the Business of the Borrower or any of its
Subsidiaries.  The Borrower shall be
entitled to reasonable prior notice of any such meeting with its independent
certified public accountants and shall have the opportunity to have its
representatives present at any such meeting. 
At the request of the Administrative Agent, the Borrower shall deliver a
letter addressed to such accountants instructing them to comply with the
provisions of this Section 6.9.2. 
Any data and information that is obtained by the Administrative Agent or
any Bank pursuant to this Section 6.9.2 shall be held subject to Section 19.


 


6.10         Compliance
with Government Mandates, Contracts, and Permits.  The Borrower will and will cause each of its
Consolidated Subsidiaries to, comply (if and to the extent that a failure to
comply would be likely to have a Material Adverse 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


 


40

















 


in full force and effect such Permit and furnish the
Administrative Agent and the Banks with evidence thereof.


 


6.11         Use
of Proceeds.  The Borrower will use
the proceeds of the Loans solely as provided in Section 5.16.


 


6.12         Certain
Changes in Accounting Principles.  In
the event of a change after the date of this Credit Agreement in (a) GAAP
(as defined in clause (b) of the definition of “GAAP” in Section 1.1)
or (b) any regulation issued by the Securities and Exchange Commission
(either such event being referred to herein as an “Accounting Change”),
that results in a material change in the calculations as to compliance with any
financial covenant contained in Section 8 or in the calculation of any
item to be taken into account in the calculations as to compliance with any
such covenant (the “Affected Computation”) in such a manner and to such
an extent that, in the good faith judgment of the Chief Financial Officer of
the Borrower or the Majority Banks, as evidenced by notice from such Majority
Banks to the Borrower and the Administrative Agent (the “Accounting Notice”),
the application of the Accounting Change to the Affected Computation would no
longer reflect the intention of the parties to this Credit Agreement, then and
in any such event:


 


(a)           the
Borrower shall, promptly after either a determination by its Chief Financial
Officer as provided above or receipt of an Accounting Notice, give written
notice thereof to the Administrative Agent and each Bank, which notice shall be
accompanied by a copy of any Accounting Notice and a certificate of the Chief
Financial Officer of the Borrower:


 


(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


 


41

















 


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.


 


6.13         Broker-Dealer
Subsidiaries.


 


6.13.1      Maintain
Net Capital.  Each Material
Broker-Dealer Subsidiary of the Borrower that is a U.S. regulated broker-dealer
shall not fail to maintain net capital in an amount not less than that required
by the Net Capital Rule for a period in excess of five (5) Business
Days of the date such Material Broker-Dealer Subsidiary knew of such failure,
and each Material Broker-Dealer Subsidiary of the Borrower that is a non-U.S.
regulated broker-dealer shall not fail to maintain net capital or capital (or
the equivalent) in an amount not less than that required by any similar rule,
regulation or requirement (including any capital adequacy requirement) of the
relevant regulatory authority or authorities in any relevant jurisdiction for a
period in excess of five (5) Business Days of the date such Material
Broker-Dealer Subsidiary knew of such failure, and


 


6.13.2      Registration;
Qualification.  Each Broker-Dealer
Subsidiary must maintain its registration or comparable qualification with its
applicable Examining Authority to the extent such registration or comparable
qualification is material to the business of the Borrower and its Subsidiaries
taken as a whole.


 


7.             CERTAIN
NEGATIVE COVENANTS OF THE BORROWER.


 


The Borrower covenants
and agrees that, so long as any Loan or any Note is Outstanding or any Bank has
any obligation to make any Loans:


 


7.1           Disposition
of Assets.  The Borrower will not,
and will not cause, permit, or suffer any of its Consolidated Subsidiaries to,
in any single transaction or in multiple transactions within any fiscal year of
the Borrower, sell, transfer, assign, or otherwise dispose of assets of the
Borrower and its Consolidated Subsidiaries, or enter into any Contract for any
such sale, transfer, assignment, or disposition (a “Disposition”), provided, however:


 


(a)           Consolidated
Subsidiaries of the Borrower may sell, transfer, assign, or dispose of assets
(including 12b-1 Fees) to the Borrower or another Consolidated Subsidiary;


 


(b)           the
Borrower and any Consolidated Subsidiary of the Borrower may make any Disposition
(other than a Disposition (whether in one or a series of transactions) of all
or substantially all of the assets of the Borrower and its Consolidated
Subsidiaries) so long as (i) no Default exists or would be caused thereby,
(ii) after giving effect to such Disposition the Borrower will, on a pro
forma basis, be in compliance with the financial covenants set forth in Section 8
hereof, and (c) the assets disposed of in any fiscal year in the aggregate
did not generate more than 33 1/3% of the consolidated revenues of the Borrower
during the immediately preceding fiscal four quarters or if such assets
generated revenues during the immediately preceding fiscal four quarters that
if subtracted from the consolidated revenues of the Borrower during this period
would result in consolidated revenues of the Borrower of less than
$1,200,000,000; and


 


(c)           the
Borrower and any Consolidated Subsidiary of the Borrower may sell, transfer or
assign, or dispose of 12b-1 Fees to Persons other than the Borrower and its
Consolidated Subsidiaries.  Any
Indebtedness in respect of obligations of the Borrower and its Consolidated
Subsidiaries arising out of such transactions shall constitute “Funded Debt”.


 


42

















 


This covenant is not intended to restrict the
conversion of a short-term investment of the Borrower into cash or into another
investment which remains an asset of the Borrower.


 


7.2           Fundamental
Changes.  The Borrower will not, and
will not cause, permit, or suffer any of its Consolidated Subsidiaries to,
become a party to any merger, dissolution or consolidation involving all or
substantially all of its assets (whether in one or a series of transactions)
(any such transaction, a “Reorganization” and the term “Reorganize”shall have a correlative meaning) or purchase or acquire all or
substantially all of the assets or Equity Securities of a Person or a business
unit of a Person (whether in one or a series of transactions) (each, an “Acquisition”)
or enter into any Contract providing for any Reorganization or Acquisition, provided,
however, so long as no Default or Event of Default then exists or would
be caused thereby:


 


(a)           any
Consolidated Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or
more Consolidated Subsidiaries;


 


(b)           any
Person may merge with (i) the Borrower provided that (x) the Borrower
shall be the continuing or surviving Person, and (y) such Person merging into
the Borrower is in the same line of business as the Borrower and its
Subsidiaries or a line of business reasonably related thereto, or (ii) any
one or more Consolidated Subsidiaries, provided that (x) such Consolidated
Subsidiary shall be the continuing or surviving Person, (y) such Person merging
into a Consolidated Subsidiary is in the same line of business as the Borrower
and its Subsidiaries or a line of business reasonably related thereto; and


 


(c)           the
Borrower or any Consolidated Subsidiary may purchase or acquire all or substantially
all of the Equity Securities or assets of a Person or a business unit of a
Person, provided that (i) such Person is in the same line of business as
the Borrower and its Subsidiaries or a line of business related thereto and (ii) after
giving effect to such purchase or acquisition, the Borrower will, on a pro
forma basis, be in compliance with the financial covenants set forth in Section 8.


 


7.3           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 Disposition permitted under Section 7.1 or Reorganization or
Acquisition permitted under Section 7.2 or an Investment permitted under Section 7.4;
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 or which are being
contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves are maintained in accordance with GAAP;


 


43

















 


(ii)           statutory
Liens of carriers, warehousemen, mechanics, suppliers, laborers, and
materialmen, and other like Liens in the ordinary course of business, in each
case in respect of obligations not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves are maintained in accordance with
GAAP;


 


(iii)          Liens
arising out of pledges or deposits in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other social
security legislation, other than any Lien imposed by ERISA;


 


(iv)          Liens
on deposits to secure performance of bids or performance bonds and other
similar Liens, in the ordinary course of business;


 


(v)           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,
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;


 


(vi)          the
rights and interests of landlords and lessors under leases of Real Estate
leased by the Borrower or one of its Subsidiaries, as lessee;


 


(vii)         Liens
outstanding on the Closing Date and set forth on Schedule 7.3;


 


(viii)        Liens
in favor of either the Borrower or a Consolidated 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 Consolidated Subsidiary, as the case
may be;


 


(ix)           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;


 


(x)            UCC
notice filings in connection with non-recourse sales of 12b-1 Fees (other than
sales constituting a collateral security device);


 


(xi)           Liens
securing purchase money Indebtedness so long as such Liens are only on the
asset acquired with such purchase money Indebtedness and secure only the
Indebtedness incurred to purchase such asset;


 


(xii)          Liens
incurred or otherwise arising in connection with the Securities Trading
Activities of the Broker-Dealer Subsidiaries;


 


(xiii)         Liens
in favor of the Administrative Agent or any Bank to secure the Obligations; and


 


44

















 


(xiv)        Liens
(in addition to those specified in clauses (i) through (xiii) 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 Administrative Agent its coverage
obligation in writing).


 


7.4           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
received in connection with the settlement of past due accounts;


 


(c)           Guarantees
otherwise constituting permitted Funded Debt;


 


(d)           So
long as no Event of Default exists or would be caused thereby, Investments in
funds or other vehicles managed by the Borrower or one of its affiliates in the
ordinary course;


 


(e)           Investments
by the Broker-Dealer Subsidiaries consisting of purchases, borrowings and other
acquisitions of securities and other financial instruments in connection with
the Securities Trading Activities of the Broker Dealer Subsidiaries;


 


(f)            Investments
existing on the Closing Date and set forth on Schedule 7.4; and


 


(g)           Other
Investments, so long as no Default exists or would be caused thereby and the
Borrower would be, on a pro forma basis, in compliance with the financial
covenants set forth in Section 8 hereof; provided, however, that with
respect to any acquisition of all or substantially all of the Equity Securities
or assets of a Person, such acquisition shall relate solely to Equity
Securities in another Person engaged primarily in, or assets of another Person
used primarily for, the same line of business as the Borrower and its
Subsidiaries or a line of business reasonably related thereto.


 


7.5           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 if as a result the Borrower will not be in
compliance with the financial covenants set forth in Section 8 hereof.


 


7.6           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


 


45

















 


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 Consolidated Subsidiary of a level of net worth for the purpose
of ensuring that limited partnerships for which it serves as general partner
will be treated as partnerships for federal income tax purposes.  Notwithstanding the foregoing, any portion of
net earnings of any Consolidated Subsidiary that is unavailable for payment of
dividends to the Borrower or any other Consolidated 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).


 


7.7           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, or (c) the Contract or
other transaction is in connection with a Reorganization or Acquisition
permitted under Section 7.2 hereof.


 


7.8           Fiscal
Year.  The Borrower shall not change
its fiscal year unless the parties to the Loan Documents shall first enter into
amendments to the Loan Documents such that the rights of the parties to the
Loan Documents will not be affected by the change in the fiscal year of the
Borrower, and the parties shall enter into such amendments as may be required
in connection with a change of the Borrower’s fiscal year.


 


7.9           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 Adverse Effect.


 


7.10         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 §406 of ERISA or §4975 of
the Code that could result in a material liability for the Borrower and its
Consolidated Subsidiaries taken as a whole;


 


46

















 


(b)           permit
any Guaranteed Pension Plan to incur an “accumulated funding deficiency”, as
such term is defined in §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
§302(f) or §4068 of ERISA; or


 


(d)           permit
or take any action that would result in the aggregate benefit liabilities
(within the meaning of §4001 of ERISA) of all Guaranteed Pension Plans
exceeding the value of the aggregate assets of such Plans by more than
$50,000,000, disregarding for this purpose the benefit liabilities and assets
of any such Plan with assets in excess of benefit liabilities.


 


7.11         Amendments
to Certain Documents.  The Borrower
shall not, without the prior written consent of the Administrative Agent in
each instance, permit or suffer any material amendments, modifications,
supplements, or restatements of its certificate of limited partnership or the
Borrower Partnership Agreement (or, following any conversion of the Borrower to
a corporation, its certificate of incorporation or by-laws) that (i) relate
to the determination of Available Cash Flow or Operating Cash Flow under the
Borrower Partnership Agreement, or (ii) could reasonably be expected to
materially adversely affect the ability of the Borrower to perform and observe
its obligations under the Loan Documents or the legal rights and remedies of
the Banks and the Administrative Agent under any of the Loan Documents.


 


8.             FINANCIAL
COVENANTS OF THE BORROWER.


 


The Borrower covenants
and agrees that, so long as any Loan or any Note is Outstanding or any Bank has
any obligation to make any Loans:


 


8.1           Consolidated
Leverage Ratio.  The Borrower will
not at any time permit its Consolidated Leverage Ratio to exceed 3.00 to 1.00.


 


8.2           Minimum
Consolidated Net Worth.  As of the
last day of each calendar quarter, the Borrower shall not permit its
Consolidated Net Worth to be less than $1,300,000,000.


 


8.3           Miscellaneous.  For purposes of this Section 8, demand
obligations shall be deemed to be due and payable during any fiscal year during
which such obligations are outstanding.


 


9.             CLOSING
CONDITIONS.


 


The obligations of the
Banks to enter into this Credit Agreement shall be subject to the satisfaction
of the following conditions precedent at or before the Closing Date:


 


9.1           Financial
Statements and Material Changes.  The
Banks shall be reasonably satisfied that (a) the financial statements of
the Borrower and the Consolidated Subsidiaries referred to in Section 5.4
fairly present in all material respects the business and financial condition
and the results of operations of the Borrower and the Consolidated Subsidiaries
as of the dates and for the periods to which such financial statements relate,
and (b) there shall have been no material adverse change in the Business
of the Borrower and the Consolidated Subsidiaries taken as a whole since the
dates of such financial statements.


 


47

















 


9.2           Loan
Documents.  Each of the Loan
Documents shall have been duly executed and delivered by the respective parties
thereto and shall be in full force and effect. 
Each Bank and the Administrative Agent shall have received a fully
executed copy of each such document.


 


9.3           Certified
Copies of Charter Documents.  Each of
the Banks and the Administrative Agent shall have received from the Borrower
and the General Partner (a) a copy of its certificate of incorporation,
certificate of limited partnership, or other charter document duly certified as
of a recent date by the Secretary of State of Delaware, (b) a copy,
certified by a duly authorized officer of such Entity to be true and complete
on the Closing Date, of its by-laws, agreement of limited partnership, or
equivalent document as in effect on such date, and (c) a certificate of
the Secretary of State of Delaware as to the due organization, legal existence,
and good standing of such Entity. The certificate of incorporation and by-laws
or partnership agreement and certificate of limited partnership, as the case
may be, of the Borrower and the General Partner shall be in all respects
satisfactory in form and substance to the Banks and the Administrative Agent.


 


9.4           Partnership
and Corporate Action.  All
partnership action necessary for the valid execution, delivery, and performance
by the Borrower of this Credit Agreement and the other Loan Documents to which
it is or is to become a party, and all corporate action necessary for the
General Partner to cause the Borrower to execute, deliver, and perform this
Credit Agreement and the other Loan Documents to which the Borrower is or is to
become a party, shall have been duly and effectively taken, evidence thereof
reasonably satisfactory to the Banks and the Administrative Agent shall have
been provided to each of the Banks, and such action shall be in full force and
effect at the Closing Date.


 


9.5           Consents.  Each party hereto shall have duly obtained
all consents and approvals of Government Authorities and other third parties,
and shall have effected all notices, filings, and registrations with Government
Authorities and other third parties, as may be required in connection with the
execution, delivery, performance, and observance of the Loan Documents; all of
such consents, approvals, notices, filings, and registrations shall be in full
force and effect; and the Banks and the Administrative Agent shall have each
received evidence thereof satisfactory to them.


 


9.6           Opinions
of Counsel.  Each of the Banks and
the Administrative Agent shall have received a favorable opinion addressed to
the Banks and the Administrative Agent, dated as of the Closing Date, from
Sidley Austin LLP, counsel to the Borrower, in the form of Exhibit G
hereto.


 


9.7           Proceedings.  Except as may be disclosed in the Borrower’s
Quarterly Report on Form 10-Q for the quarter ended September 30,
2005, there shall be no Proceedings pending or threatened the result of which,
if adversely determined, is reasonably likely to impair or prevent the Borrower’s
performance and observance of its obligations under this Credit Agreement and
the other Loan Documents.


 


9.8           Incumbency
Certificate.  Each of the Banks and
the Administrative Agent shall have received from the Borrower an incumbency
certificate, dated as of the Closing Date, signed by a duly authorized officer
of the Borrower and giving the name and bearing a specimen signature of each
individual who shall be authorized: (a) to sign, in the name and on behalf
of the Borrower, each of the Loan Documents to which the Borrower is or is to
become a party; (b) to make Loan Requests and Conversion Requests; and (c) to
give notices and to take other action on behalf of the Borrower under the Loan
Documents.


 


9.9           Fees.  The Borrower shall have paid to the
Administrative Agent for the accounts of the Banks all fees then payable.


 


48

















 


9.10         Representations
and Warranties True; No Defaults. 
The Administrative Agent and the Banks shall have received a certificate
of an officer of the General Partner, in form and substance satisfactory to the
Administrative Agent and the Banks, to the effect that (i) each of the
representations and warranties set forth herein and each of the other Loan
Documents is true and correct in all material respects on and as of the Closing
Date, and (ii) no material defaults exist under any material contract or
agreement of the Borrower, including, without limitation, this Credit Agreement
and the other Loan Documents.


 


9.11         Termination
of Prior Credit Agreement.  The
Administrative Agent and the Banks shall have received evidence, in form and
substance satisfactory to the Administrative Agent (it being understood by the
Administrative Agent that copies of the notice of termination of such credit
facility properly delivered pursuant to the terms thereof shall be deemed to be
satisfactory), of the termination of that certain Revolving Credit Agreement,
dated as of September 6, 2002 (as amended), among the Borrower, the
financial institutions party thereto and Bank of America, as administrative
agent, in each case, confirming repayment in full of all obligations arising
thereunder.


 


9.12         Determinations
under Section 9.  Without
limiting the generality of the provisions of Section 13.1.4, for purposes
of determining compliance with the conditions specified in this Section 9,
each Bank that has signed this Credit Agreement shall be deemed to have
consented to, approved, accepted and to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Bank unless the Administrative Agent shall have
received notice from such Bank prior to the proposed Closing Date specifying
its objection thereto.


 


10.           CONDITIONS
TO ALL BORROWINGS.


 


The obligations of the
Banks to make any Loan, 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 by
the Borrower and the acceptance by the Borrower of any Loan shall constitute a
representation and warranty by the Borrower that the conditions set forth below
have been satisfied.


 


10.1         No
Default.  No Default or Event of
Default shall have occurred and be continuing.


 


10.2         Representations
True.  Each of the representations
and warranties of the Borrower and its Subsidiaries contained in this Credit
Agreement (other than the Borrower’s representation and warranty set forth in Section 5.5),
the other Loan Documents, or in any document or instrument delivered pursuant
to or in connection with this Credit Agreement shall be true and correct in all
material respects as of the time of the making of such Loan, with the same
effect as if made at and as of that time (except (a) to the extent that
such representations and warranties expressly relate to a prior date, in which
case they shall be true and correct in all material respects as of such earlier
date, and (b) to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse to the Borrower and its Consolidated
Subsidiaries taken as a whole).


 


10.3         Loan
Request.  The Administrative Agent
shall have received a Loan Request as provided in Section 2.8.


 


10.4         Payment
of Fees.  Without limiting any other
condition, the Borrower shall have paid to the Administrative Agent, for the
account of the Banks and the Administrative Agent as appropriate, all fees and
other amounts due and payable under the Loan Documents at or prior to the time
of the making of such Loan.


 


49

















 


10.5         No
Legal Impediment.  No change shall
have occurred in any Government Mandate that in the reasonable opinion of any
Bank would make it illegal for such Bank to make such Loan (it being understood
that this section shall be a condition only for the Bank or Banks affected
by such Government Mandate).


 


11.           EVENTS
OF DEFAULT; ACCELERATION; ETC.


 


11.1         Events
of Default and Acceleration.  If any
of the following events (“Events of Default” or, if the giving of notice
or the lapse of time or both is required, then, prior to such notice or lapse
of time, “Defaults”) shall occur:


 


(a)           the
Borrower shall fail to pay any principal of the Loans when the same shall
become due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for payment;


 


(b)           the
Borrower 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 by the Administrative Agent;


 


(c)           the
Borrower shall fail to perform or observe any of its covenants contained in
Sections 6.5.1, 6.6.1, 7.1, 7.2, 7.3(xiv), 7.11, 8, or, if such failure relates
to a Lien securing Funded Debt, 7.3;


 


(d)           the
Borrower or any of its Subsidiaries shall fail to perform or observe any term,
covenant, or agreement contained herein or in any of the other Loan Documents
(other than those specified elsewhere in this Section 11) for thirty (30)
days after written notice of such failure has been given to the Borrower by the
Administrative Agent, provided, that a failure to perform or observe the
terms, covenants and agreements set forth in Section 6.4, Section 6.5.3,
Section 6.9 or Section 6.13.1 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 or any of its 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 the occurrence of 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 or, with
respect to any Swap Contract, as to which the Borrower or any Subsidiary is the
defaulting party, permitting early termination thereof shall occur with respect
to (i) any Indebtedness for money borrowed, (ii) any Indebtedness in
respect of the deferred purchase price of goods or services,  (iii) any Capitalized Lease, (iv) any
Broker-Dealer Debt, (v) any Swap Contract or (vi) any Synthetic Lease
Obligation, of the Borrower or any of its Subsidiaries, having a principal
amount (or (x) 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 or (y) in the case of a Swap Contract, the Swap
Termination Value or (z) in the case of a Synthetic Lease Obligation, the amount
of Attributable Indebtedness with respect thereto), (A) in any one case,
of $100,000,000 or more, or (B) in
the aggregate, of $250,000,000 or more, and


 


50

















 


such failure to make a payment of principal or interest, or a default,
event of default, or other event shall continue for such period of time as
would entitle the holder of such Indebtedness, Capitalized Lease, Swap Contract
or Synthetic Lease Obligation (with or without notice) to accelerate such Indebtedness
or terminate such Capitalized Lease, Swap Contract or Synthetic Lease
Obligation;


 


(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 or any of its 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, 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, Alliance
Distributors, the General Partner or any Material Subsidiary or of any
substantial part of the assets of the Borrower, Alliance Distributors, the
General Partner, or any Material Subsidiary, or shall commence any Proceeding
relating to the Borrower, 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, 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, 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, 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, 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 or any
of its Subsidiaries, that, with any other such outstanding final judgments or
orders, undischarged, against the Borrower and its Subsidiaries taken together
exceeds in the aggregate $50,000,000;


 


(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 or any of its Subsidiaries to the PBGC or such Guaranteed
Pension Plan in an aggregate amount exceeding $50,000,000 and such event in the
circumstances occurring reasonably could constitute


 


51

















 


grounds for the termination of such Guaranteed Pension Plan by the PBGC
or for the appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan; or a trustee shall have
been appointed by the United States District Court to administer such
Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to
terminate such Guaranteed Pension Plan;


 


(l)            any
of the following: (i) the Borrower 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., in each case, to the
extent required;


 


(m)          the
Borrower, 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, Alliance
Distributors, the General Partner, or one or more of such Material Subsidiaries
having a fair market value in excess of $50,000,000, 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, Alliance Distributors, the General
Partner, or such Material Subsidiary having in any such case a fair market
value in excess of $50,000,000; 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, provided, that the admission of additional
Persons as 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 9.3 if such Person were a
General Partner on the Closing Date, (ii) an incumbency certificate for
such general partner as required for the Borrower pursuant to Section 9.8,
and (iii) 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;


 


then, and in any such event, so long as the same may be continuing, the
Administrative Agent shall, at the request of, or may with the consent of, the
Majority Banks take one or more of the following actions: (x) declare the
Commitment of each Bank to make Loans to be terminated, whereupon such
Commitment shall be terminated; and (y) by notice in writing to the Borrower
declare all amounts owing with respect to this Credit Agreement, any Notes, and
the other Loan Documents to be, and they shall thereupon forthwith become, immediately
due and payable without presentment, demand, protest, or other notice of any
kind, all of which are hereby expressly waived by the Borrower.  In addition, in any such event, so long as
the same may be continuing, the Administrative Agent may or, at the request of
the Majority Banks, shall exercise on behalf of itself and the Banks all other
rights and remedies available to it and the Banks under the Loan Documents or
applicable law.  Notwithstanding the
foregoing, in the event of any Event of Default specified in Section 11.1(h) or
Section 11.1(i), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Administrative
Agent or any Bank, and any unused portion of the Total Commitment hereunder
shall forthwith terminate and each of the Banks shall be relieved of all
obligations to make Loans to the Borrower. 
Any declaration under this Section 11.1 may be rescinded by the
Majority Banks after the Events of Default leading to such declaration are
cured or waived.


 


52

















 


11.2         Termination
of Commitments.  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 this Credit Agreement, the Notes or the other Loan Documents.


 


11.3         Application
of Monies.  In the event that, during
the continuance of any Default or Event of Default, the Administrative Agent or
any Bank, as the case may be, receives any monies in connection with the
enforcement of rights under the Loan Documents, such monies shall be
distributed for application as follows:


 


(a)           First,
to the payment of, or (as the case may be) the reimbursement of the
Administrative Agent and the Banks for or in respect of all costs, expenses,
disbursements, and losses that shall have been incurred or sustained by the
Administrative Agent and the Banks in connection with the collection of such
monies by the Administrative Agent or any such Banks, for the exercise,
protection, or enforcement by the Administrative Agent or any such Banks of all
or any of the rights, remedies, powers, and privileges of the Administrative
Agent or any such Banks under this Credit Agreement or any of the other Loan
Documents, or in support of any provision of adequate indemnity to the
Administrative Agent or any such Banks against any taxes or Liens that by
Government Mandate shall have, or may have, priority over the rights of the
Administrative Agent or any such Banks to such monies;


 


(b)           Second,
to all other Obligations in such order or preference as the Majority Banks may
determine; provided, however, that distributions among
Obligations owing to the Banks and the Administrative Agent with respect to
each type of Obligation such as interest, principal, fees, and expenses, shall
be made among the Banks and the Administrative Agent pro rata according
to the respective amounts thereof; and provided, further, that
the Administrative Agent may in its discretion make proper allowance to take
into account any Obligations not then due and payable; and


 


(c)           Third,
the excess, if any, shall be returned to the Borrower or to such other Persons
as are entitled thereto.


 


12.           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 if such Bank shall receive from the Borrower,
whether by voluntary payment, exercise of the right of setoff, counterclaim,
cross action, enforcement of the Obligations held by such Bank by Proceedings
against the Borrower, by proof thereof in bankruptcy, reorganization,
liquidation, receivership, or similar Proceedings, or otherwise, and shall
retain and apply to the payment of the Obligations held by such Bank, any
amount in excess of its ratable portion of the payments received by all of the
Banks with respect to the Obligations held by all of the Banks (exclusive of
payments to be made for the account of less than all of the Banks as provided
in Sections 3.2.2, 4.6, 4.7, 4.9 and 4.11), 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 Obligations held by it, its proportionate payment as contemplated by this
Credit Agreement; provided that if all or any part of such excess
payment is thereafter recovered from such Bank, such disposition and
arrangements shall be rescinded and the amount restored to the extent of such
recovery, but without interest.


 


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13.           THE
ADMINISTRATIVE AGENT.


 


13.1.1      Appointment
and Authority.  Each of the Banks
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.  The provisions of
this Article are solely for the benefit of the Administrative Agent
and the Banks, and the Borrower shall not have rights as a third party
beneficiary of any of such provisions.


 


13.1.2      Rights
as a Bank.  The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Bank as any other Bank and may exercise the same as though it
were not the Administrative Agent and the term “Bank” or “Banks”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent hereunder in
its individual capacity.  Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrower or any Subsidiary or other Affiliate thereof as
if such Person were not the Administrative Agent hereunder and without any duty
to account therefor to the Banks.


 


13.1.3      Exculpatory
Provisions.  (a)  The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the
foregoing, the Administrative Agent:


 


(i)            shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;


 


(ii)           shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that the Administrative Agent is required
to exercise as directed in writing by the Majority Banks (or such other number
or percentage of the Banks as shall be expressly provided for herein or in the
other Loan Documents), provided that the Administrative Agent shall not
be required to take any action that, in its opinion or the opinion of its
counsel, may expose the Administrative Agent to liability or that is contrary
to any Loan Document or applicable law; and


 


(iii)          shall not, except as expressly set forth
herein and in the other Loan Documents, have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to the
Borrower or any of its Affiliates that is communicated to or obtained by the
Person serving as the Administrative Agent or any of its Affiliates in any
capacity.


 


(b)           The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Majority Banks (or such
other number or percentage of the Banks as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11 and 25) or (ii) in the absence of
its own gross negligence or willful misconduct. 
The Administrative Agent shall be deemed not to have knowledge of any
Default unless and until notice describing such Default is given to the
Administrative Agent by the Borrower or a Bank.


 


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(c)           The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with this Credit Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Credit Agreement,
any other Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Section 9 or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.


 


13.1.4      Reliance
by Administrative Agent.  The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person.  The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon.  In
determining compliance with any condition hereunder to the making of a Loan
that by its terms must be fulfilled to the satisfaction of a Bank, the
Administrative Agent may presume that such condition is satisfactory to such
Bank unless the Administrative Agent shall have received notice to the contrary
from such Bank prior to the making of such Loan.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.


 


13.1.5      Delegation
of Duties.  The Administrative Agent
may execute any of its duties under this Credit Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel and other consultants or experts concerning all
matters pertaining to such duties.  The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct..


 


13.1.6      Resignation
of Administrative Agent.  The
Administrative Agent may at any time give 60 days prior written notice of its
resignation to the Banks and the Borrower. 
Upon receipt of any such notice of resignation, the Majority Banks shall
have the right, in consultation with the Borrower, to appoint a successor,
which shall be a Bank with an office in the United States, or an Affiliate of
any such Bank with an office in the United States.  Any such appointment shall be subject to the
consent of the Borrower at all times other than during the existence of an
Event of Default (which consent of the Borrower shall not be unreasonably
withheld or delayed).  If no such
successor shall have been so appointed by the Majority Banks and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may on behalf of the Banks, appoint a successor Administrative Agent meeting
the qualifications set forth above, which shall be subject to the consent of
the Borrower at all times other than during the continuance of an Event of
Default (which consent shall not be unreasonably withheld or delayed); provided
that if the Administrative Agent shall notify the Borrower and the Banks that
no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (b) all
payments, communications and determinations provided to be made by, to or
through the Administrative


 


55

















 


Agent shall instead be made by or to each Bank directly, until such
time as the Majority Banks appoint a successor Administrative Agent as provided
for above in this Section.  Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and
the retiring Administrative Agent shall be discharged from all of its duties
and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section 13.1.6).  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Section 13.1 and Sections 14 and 15
shall continue in effect for the benefit of such retiring Administrative Agent
and its Related Parties in respect of any actions taken or omitted to be taken
by any of them while the retiring Administrative Agent was acting as
Administrative Agent.


 


13.1.7      Non-Reliance
on Administrative Agent and Other Banks. 
Each Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Bank or any of their Related Parties
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Credit Agreement.  Each Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Bank or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Credit Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder.


 


13.1.8      No
Other Duties, Etc.  Anything herein
to the contrary notwithstanding, neither the Arranger nor any Co-Syndication Agent
or Co-Documentation Agents listed on the cover page hereof shall have any
powers, duties or responsibilities under this Credit Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent or a Bank hereunder.


 


13.1.9      Administrative Agent May File
Proofs of Claim..  In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Borrower, the Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise


 


(a)           to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Banks and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Banks and the Administrative Agent and its counsel and all other amounts
due the Banks and the Administrative Agent under Sections 2.2, 2.3 and 14)
allowed in such judicial proceeding; and


 


(b)           to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


56

















 


and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Bank to make such payments to the Administrative
Agent and, if the Administrative Agent shall consent to the making of such
payments directly to the Banks, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of
the Administrative Agent and its agents and counsel, and any other amounts due
the Administrative Agent under Sections 2.2, 2.3 and 14.


 


Nothing contained herein shall be deemed to authorize
the Administrative Agent to authorize or consent to or accept or adopt on
behalf of any Bank any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Bank or to authorize
the Administrative Agent to vote in respect of the claim of any Bank in any such
proceeding.


 


13.2         Other
Agents; Arrangers and Managers.  None
of the Banks or other Persons identified on the facing page or signature pages of
this Credit Agreement as a “co-syndication agent,” “co-documentation agent,” “book
manager,” or “arranger” shall have any right, power, obligation, liability,
responsibility or duty under this Credit Agreement other than, in the case of
such Banks, those applicable to all Banks in their individual capacity as
parties hereto.  Without limiting the
foregoing, none of the Banks or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Bank.  Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks or other Persons so identified
in deciding to enter into this Credit Agreement or in taking or not taking
action hereunder.


 


13.3         Payments.


 


13.3.1      Payments
to Administrative Agent.  A payment
by the Borrower to the Administrative Agent hereunder or under any of the other
Loan Documents for the account of any Bank shall constitute a payment to such
Bank.  The Administrative Agent shall
promptly distribute to each Bank such Bank’s pro rata share of payments
received by the Administrative Agent for the account of the Banks except as
otherwise expressly provided herein or in any of the other Loan Documents.


 


13.3.2      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 any Notes, or under any of the
other Loan Documents might involve it in liability, it may refrain from making
distribution until its right to make the same shall have been adjudicated by a
court of competent jurisdiction.  If any
Government Authority shall adjudge that any amount received and distributed by
the Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or shall pay
over the same in such manner and to such Persons as shall be determined by such
Government Authority.


 


13.3.3      Delinquent
Banks.  Notwithstanding anything to
the contrary contained in this Credit Agreement or any of the other Loan
Documents, any Bank that fails (a) to make available to the Administrative
Agent its pro  rata share of any Loan, or (b) to comply with
the provisions of Section 12 with respect to making dispositions and
arrangements with the other Banks, where such Bank’s share of any payment received,
whether by setoff or otherwise, is in excess of its pro  rata
share of such payments due and payable to all of the Banks, in each case as,
when, and to the full extent required by the provisions of this Credit
Agreement, shall be deemed delinquent (a “Delinquent  Bank”) and
shall be deemed a Delinquent Bank until such time as such


 


57

















 


delinquency is satisfied.  A
Delinquent Bank shall be deemed to have assigned any and all payments due to it
from the Borrower, whether on account of Outstanding Loans, interest, fees, or
otherwise, to the remaining nondelinquent Banks for application to, and
reduction of, their respective pro  rata shares of all Outstanding
Loans.  The Delinquent Bank hereby
authorizes the Administrative Agent to distribute such payments to the
nondelinquent Banks in proportion to their respective pro  rata
shares of all Outstanding Loans.  A
Delinquent Bank shall be deemed to have satisfied in full a delinquency when
and if, as a result of application of the assigned payments to all Outstanding
Loans of the non-delinquent Banks, the Banks’ respective pro  rata
shares of all Outstanding Loans have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment causing
such delinquency.


 


13.4         Holders
of Notes.  Subject to Section 17,
the Administrative Agent may deem and treat the payee of any Note as the
absolute owner thereof for all purposes hereof until it shall have been
furnished in writing with a different name by such payee or by a subsequent
holder, assignee, or transferee.


 


13.5         Payments
by Borrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have
received notice from the Borrower prior to the time at which any payment is due
to the Administrative Agent for the account of the Banks hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Banks the amount due.  In such event, if the Borrower has not in
fact made such payment, then each of the Banks severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Bank, in immediately available funds with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.


 


14.           EXPENSES.


 


The Borrower shall upon
demand either, as the Banks or the Administrative Agent may require and
regardless of whether any Loans are made hereunder, pay in the first instance
or reimburse the Banks and the Administrative Agent (to the extent that
payments for the following items are not made under the other provisions
hereof) for (a) the reasonable out-of-pocket costs of producing and
reproducing this Credit Agreement, the other Loan Documents, and the other
agreements and instruments mentioned herein, (b) reasonable out-of-pocket
expenses incurred in connection with the syndication of this facility, (c) the
reasonable fees, expenses, and disbursements of the Administrative Agent’s
special counsel incurred in connection with the preparation, the
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, (d) the reasonable
fees, expenses, and disbursement of the Administrative Agent incurred by the
Administrative Agent in connection with the preparation, administration, or
interpretation of the Loan Documents and other instruments mentioned herein, and
(e) all reasonable out-of-pocket expenses (including reasonable attorneys’
fees and costs, which attorneys may be employees of any Bank or the
Administrative Agent (provided such fees are non-duplicative of fees of outside
counsel), and reasonable consulting, accounting, appraisal, investment banking,
and similar professional fees and charges) incurred by any Bank or the
Administrative Agent in connection with (i) the enforcement of or
preservation of rights under any of the Loan Documents against the Borrower or
any of its Subsidiaries or the administration thereof after the occurrence of a
Default or Event of Default and (ii) any Proceeding or dispute whether
arising hereunder or otherwise, in any way related to any Bank’s or the
Administrative Agent’s relationship with the Borrower or any of its
Subsidiaries.  The Borrower shall not be
responsible


 


58

















 


under clause (e) above for the fees and costs of
more than one law firm in any one jurisdiction with respect to any one
Proceeding or set of related Proceedings for the Administrative Agent and the
Banks, unless any of the Administrative Agent and the Banks shall have
reasonably concluded that there are legal defenses available to it that are
different from or additional to those available to the Borrower or there are
other circumstances that in the reasonable judgment of the Administrative Agent
and the Banks make separate counsel advisable. 
The covenants of this Section 14 shall survive payment or
satisfaction of all other Obligations and the termination of the Commitments
and the Loan Documents.


 


15.           INDEMNIFICATION.


 


The Borrower shall,
regardless of whether any Loans are made hereunder, indemnify and hold harmless
the Administrative Agent and the Banks, together with their respective
shareholders, directors, agents, officers, Subsidiaries, and Affiliates, from
and against any and all damages, losses, settlement payments, obligations,
liabilities, claims, causes of action, and Proceedings, and reasonable costs
and expenses in connection therewith, incurred, suffered, sustained, or
required to be paid by an indemnified party by reason of or resulting, directly
or indirectly, from the transactions contemplated by the Loan Documents,
including (a) any actual or proposed use by the Borrower or any of its
Subsidiaries of the proceeds of any of the Loans, (b) the Borrower or any
of its Subsidiaries entering into or performing this Credit Agreement or any of
the other Loan Documents, or (c) with respect to the Borrower and its
Subsidiaries and their respective properties and assets, the violation of any
Environmental Law, the presence, disposal, escape, seepage, leakage, spillage,
discharge, emission, release, or threatened release of any Hazardous Substances
or any Proceeding brought or threatened with respect to any Hazardous
Substances (including claims with respect to wrongful death, personal injury,
or damage to property), in each case including the reasonable fees and
disbursements of legal counsel and non-duplicative reasonable allocated costs
of internal legal counsel incurred in connection with any such Proceeding (collectively,
the “Indemnified Liabilities”), 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 Loan pursuant to this Credit
Agreement, provided that the Borrower is not then in Default.  In Proceedings, or the preparation therefor,
the indemnified parties shall be entitled to select their legal counsel and, in
addition to the foregoing indemnity, the Borrower shall, promptly upon demand,
pay in the first instance, or reimburse the indemnified parties for, the
reasonable fees and expenses of such legal counsel.  The Borrower shall not be responsible under
this section for the fees and costs of more than one law firm in any one
jurisdiction for the Borrower and the indemnified parties with respect to any
one Proceeding or set of related Proceedings, unless any indemnified party
shall have reasonably concluded that there are legal defenses available to it
that are different from or additional to those available to the Borrower or
there are other circumstances that in the reasonable judgment of the
indemnified parties make separate counsel advisable.  If, and to the extent that the obligations of
the Borrower under this Section 15 are unenforceable for any reason, the
Borrower shall make the maximum contribution to the payment in satisfaction of
such obligations that is permissible under applicable law.  The covenants contained in this Section 15
shall survive payment or satisfaction in full of all other Obligations and the
termination of the Commitments and the Loan Documents.


 


16.           SURVIVAL
OF COVENANTS, ETC.


 


All covenants,
agreements, representations, and warranties made herein, in any Notes, in any
of the other Loan Documents, or in any documents or other papers delivered by
or on behalf of the Borrower or any of its Subsidiaries pursuant hereto shall
be deemed to have been relied upon by the Banks and the Administrative Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Banks of the Loans, as herein contemplated,
and all covenants and


 


59

















 


agreements shall continue in full force and effect so
long as any amount due under this Credit Agreement or any Notes or any of the
other Loan Documents remains outstanding or any Bank has any obligation to make
any Loans, and for such further time as may be otherwise expressly specified in
this Credit Agreement.  All statements
contained in any certificate or other paper delivered to any Bank or the Administrative
Agent at any time by or on behalf of the Borrower or any of its Subsidiaries
pursuant hereto or in connection with the transactions contemplated hereby
shall constitute representations and warranties by the Borrower or such
Subsidiary hereunder.


 


17.           ASSIGNMENT
AND PARTICIPATION.


 


17.1         Assignments
and Participations.  (a)  Successors
and Assigns Generally.  The
provisions of this Credit Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Bank and no Bank may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of Section 17.1(b), (ii) by
way of participation in accordance with the provisions of Section 17.1(d),
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of Section 17.5, or (iv) to an SPC in accordance with
the provisions of Section 17.6 (and any other attempted assignment or
transfer by any party hereto shall be null and void).  Nothing in this Credit Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section 17.1
and, to the extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent and the Banks) any legal or equitable right, remedy
or claim under or by reason of this Credit Agreement.


 


(b)           Assignments
by Banks.  Any Bank may at any time
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Credit Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that


 


(i)            except
in the case of an assignment of the entire remaining amount of the assigning
Bank’s Commitment and the Loans at the time owing to it, the aggregate amount
of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loan of the assigning Bank subject to each
such assignment, determined as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of the
Trade Date, shall not be less than $10,000,000 or in integral multiples of
$1,000,000 in excess thereof, unless each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed);


 


(ii)           each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Bank’s rights and obligations under this Credit Agreement
with respect to the Loans or the Commitment assigned;


 


(iii)          any
assignment must be approved by the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower (each such
consent not to be unreasonably withheld or delayed, it being understood that
the Borrower’s consent is not unreasonably withheld if such assignment would
result in a reduction of or a withdrawal of the then current ratings of
commercial paper notes of the Borrower);


 


60

















 


(iv)          the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500; provided that (A) no such fee shall be payable in the
case of an assignment to a Bank, an Affiliate of a Bank or an Approved Fund
with respect to a Bank and (B) in the case of contemporaneous assignments
by a Bank to one or more Funds managed by the same investment advisor (which
Funds are not then Banks hereunder), only a single such $3,500 fee shall be
payable for all such contemporaneous assignments;


 


(v)           the
Eligible Assignee, if it shall not be a Bank, shall deliver to the
Administrative Agent such information regarding its Domestic Lending Office and
LIBOR Lending Offices as the Administrative Agent may request; and


 


(vi)          no
assignee of a Bank shall be entitled to the benefits of Sections 4.6, 4.9 or
4.11 in relation to circumstances applicable to such assignee immediately
following the assignment to it which at such time (if a payment were then due
to the assignee on its behalf from the Borrower ) would give rise to any
greater financial burden on the Borrower under Section 4.6, 4.9 or 4.11
than those which it would have been under the absence of such assignment.


 


Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section 17.1, from and after the effective date specified in each
Assignment and Acceptance, the Eligible Assignee thereunder shall be a party to
this Credit Agreement and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Bank under this
Credit Agreement, and the assigning Bank thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Credit Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Bank’s rights and obligations under this
Credit Agreement, such Bank shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 4.6, 4.9, 4.11, 14 and 15 and bound
by the provisions of Section 19 with respect to facts and circumstances
occurring prior to the effective date of such assignment).  Any assignment or transfer by a Bank of
rights or obligations under this Credit Agreement that does not comply with
this subsection shall be treated for purposes of this Credit Agreement as
a sale by such Bank of a participation in such rights and obligations in
accordance with Section 17.1(d).


 


(c)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Head Office a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Banks, and
the Commitments of, and principal amounts of the Loans owing to, each Bank
pursuant to the terms hereof from time to time (the “Register”).  The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Banks may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Bank hereunder for all
purposes of this Credit Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by each of the Banks and the Borrower at any reasonable time and
from time to time upon reasonable prior notice. 
In addition, at any time that a request for a consent for a material or
other substantive change to the Loan Documents is pending, any Bank may request
and receive from the Administrative Agent a copy of the Register.


 


(d)           Participations.  Any Bank may at any time, without the consent
of, or notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person or the Borrower or any of the
Borrower’s Affiliates or Subsidiaries) (each, following any such sale, a “Participant”) in all or a portion
of such Bank’s rights and/or obligations under this Credit Agreement (including
all or a portion of its Commitment and/or the Loans owing to it); provided
that (i) such Bank’s obligations under this Credit Agreement shall remain
unchanged, (ii) such Bank shall remain solely


 


61

















 


responsible to
the other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank’s rights and
obligations under this Credit Agreement. 
Any agreement or instrument pursuant to which a Bank sells such a
participation shall provide that such Bank shall retain the sole right to
enforce this Credit Agreement and to approve any amendment, modification or
waiver of any provision of this Credit Agreement; provided that such
agreement or instrument may provide that such Bank will not, without the
consent of the Participant, agree to any amendment, waiver or other
modification described in Section 25 that directly affects such
Participant.  Subject to subsection (e) of
this Section 17.1, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 4.6, 4.9 and 4.11 to
the same extent as if it were a Bank and had acquired its interest by
assignment pursuant to Section 17.1(b). 
To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 12 as though it were a Bank, provided
such Participant agrees to be subject to Section 12 as though it were a
Bank.


 


(e)           Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Sections
4.6, 4.9 or 4.11 than the applicable Bank would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. 
A Participant that would be a Foreign Bank if it were a Bank shall not
be entitled to the benefits of Section 4.11 unless the Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 4.11 as
though it were a Bank.


 


(f)            Electronic
Execution of Assignments.  The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and
Acceptance shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.


 


17.2         New
Notes.  Upon its receipt of an
Assignment and Acceptance executed by the parties to such assignment, together
with any 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, if requested by the Eligible Assignee, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent, in exchange for each surrendered Note, a new Note to the order of such
Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, at the request of the
Administrative Agent or the assigning Bank, 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.


 


17.3         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 19.


 


62

















 


17.4         Assignee
or Participant Affiliated with the Borrower.  If any assignee Bank is an Affiliate of the
Borrower, then any such assignee Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or other
modifications to any of the Loan Documents or for purposes of making requests
to the Administrative Agent pursuant to Section 11, and the determination
of the Majority Banks shall for all purposes of this Credit Agreement and the
other Loan Documents be made without regard to such assignee Bank’s interest in
any of the Loans.  If any Bank sells a
participating interest in any of the Loans to a participant, and such
participant is the Borrower or an Affiliate of the Borrower, then such
transferor Bank shall promptly notify the Administrative Agent of the sale of
such participation.  A transferor Bank
shall have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or modifications to any of the Loan Documents or for
purposes of making requests to the Administrative Agent pursuant to Section 11
to the extent that such participation is beneficially owned by the Borrower or
any Affiliate of the Borrower, and the determination of the Majority Banks
shall for all purposes of this Credit Agreement and the other Loan Documents be
made without regard to the interest of such transferor Bank in the Loans to the
extent of such participation.


 


17.5         Miscellaneous
Assignment Provisions.  Any assigning
Bank shall retain its rights to be indemnified pursuant to Sections 4.6, 4.9,
14, and 15 with respect to any claims or actions arising prior to the date of
the assignment.  If any assignee Bank is a
Foreign Bank, it shall, prior to the date on which it becomes a Bank hereunder,
deliver to the Borrower and the Administrative Agent the documents required to
be delivered pursuant to Section 4.11. 
Anything contained in this Section 17 to the contrary
notwithstanding, any Bank may at any time pledge all or any portion of its
interest and rights under this Credit Agreement (including all or any portion
of its Notes) to any of the twelve Federal Reserve Banks organized under §4 of
the Federal Reserve Act, 12 U.S.C. §341. 
No such pledge or the enforcement thereof shall release the pledgor Bank
from its obligations hereunder or under any of the other Loan Documents.


 


17.6         SPC
Provision.  Notwithstanding anything
to the contrary contained herein, any Bank (a “Granting Lender”) may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”)
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Credit Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC
to fund any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof.  Each party hereto hereby agrees that (i) neither
the grant to any SPC nor the exercise by any SPC of such option shall increase
the costs or expenses or otherwise increase or change the obligations of the
Borrower under this Credit Agreement, (ii) no SPC shall be liable for any
indemnity or similar payment obligation under this Credit Agreement for which a
Bank would be liable, and (iii) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the Bank of record
hereunder.  The making of a Loan by an
SPC hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender.  In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Credit Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior debt of
any SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State
thereof; provided, with respect to such agreement by the Borrower, that the
related Granting Lender shall not be in breach of its obligations to make Loans
to the Borrower hereunder. 
Notwithstanding the foregoing, the Granting Lender unconditionally
agrees to indemnify the Borrower, the Administrative Agent and each Bank against
all liabilities, obligations, losses, damages,


 


63

















 


penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be incurred by or
asserted against the Borrower, the Administrative Agent or such Bank, as the
case may be, in any way relating to or arising as a consequence of any such
forbearance or delay in the initiation of any such proceeding against its
SPC.  Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without
prior consent of the Borrower and the Administrative Agent and without the
payment of a registration fee of $3,500, assign all or any portion of its right
to receive payment with respect to any Loan to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of
Loans to any rating agency, commercial paper dealer or provider of any surety
or guarantee or credit or liquidity enhancement to such SPC.  This Section may not be amended, waived
or otherwise modified without the written consent of each Granting Lender all
or any part of whose Loans are being funded by a SPC at the time of such
amendment, waiver or other modification.


 


18.           NOTICES,
ETC.


 


18.1         Notices.


 


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 any Notes shall be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, sent by overnight courier, or sent
by telegraph, telecopy or telefax and confirmed by delivery via courier or
postal service or (subject to Section 18.2) via electronic mail at the
address specified below or on Schedule 1, addressed as follows:


 


(a)           if
to the Borrower, at 1345 Avenue of the Americas, New York, New York 10105
(Telecopy Number (212) 823-3250), 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 Bank of America, whether individually or as Administrative Agent, at its
address set forth on Schedule 1 hereto or such other address for
notice as Bank of America 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 in the Assignment and Acceptance pursuant to which it became a party 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, (ii) if sent by registered or
certified first-class mail, postage prepaid, on the third Business Day
following the mailing thereof and (iii) if delivered by electronic mail
(which form of delivery is subject to Section 18.2), when delivered.


 


18.2         Electronic
Notices.  Electronic mail and
internet and intranet websites may be used only to the extent permitted by Section 6.4(f) and
to distribute Loan Documents for execution by the parties thereto, and may not
be used for any other purpose under this Credit Agreement or any other Loan
Document.


 


64

















 


19.           CONFIDENTIALITY.


 


Each of the
Administrative Agent and the Banks agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a) to
its Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and representatives who need to know such
Information to permit such Bank to evaluate, administer or enforce this Credit
Agreement (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Credit Agreement or any
other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to any permitted assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Credit Agreement, (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a
result of a breach of this Section 19 or (ii) becomes available to
the Administrative Agent, any Bank or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower.


 


For the purposes of this Section 19,
“Information” means all information received from the Borrower relating to the
Borrower, its Subsidiaries or their respective businesses, other than any such
information that is available to the Administrative Agent or any Bank on a
nonconfidential basis prior to disclosure by the Borrower, whether or not the
information is marked as confidential. 
Any Person required to maintain the confidentiality of Information as
provided in this Section 19 shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
any other third party information subject to a confidentiality agreement
substantially similar to this Section 19.


 


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 APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY
WITHIN SUCH STATE.  EACH OF THE
ADMINISTRATIVE AGENT THE BANKS, AND THE BORROWER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN SECTION 18. 
EACH OF THE ADMINISTRATIVE AGENT, THE BANKS, AND THE BORROWER HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.


 


21.           HEADINGS.


 


The captions in this
Credit Agreement are for convenience of reference only and shall not define or
limit the provisions hereof.


 


65

















 


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. 
Any signatures delivered after the Closing Date by a party by facsimile
transmission shall be deemed an original signature hereto.


 


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 BANKS, AND THE BORROWER HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY PROCEEDING DIRECTLY OR INDIRECTLY 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 OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).  EXCEPT AS PROHIBITED BY LAW,
EACH OF THE ADMINISTRATIVE AGENT, THE BANKS AND THE BORROWER HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY PROCEEDING REFERRED TO IN THE
PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES
OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


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 Loans (other than interest accruing pursuant to Section 4.10
following the effective date of any waiver by the Majority Banks of the Default
or Event of Default relating thereto), the term of the Loans, the definition of
Maturity Date, the extension of any scheduled


 


66

















 


date of payment of any principal, interest or fees
hereunder or any mandatory payment of principal under Section 3.2.1, the
pro rata sharing provisions of Section 13.3.1 and the amount of facility
fees hereunder may not be changed and the Outstanding principal amount of the
Loans, or any portion thereof, may not be forgiven 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 Loans (or, if no Loans 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; the amount of
the Administrative Agent’s fee and Section 13 may not be amended without
the written consent of the Administrative Agent; and the amount of the
Commitment of any Bank may not be increased without the consent of such
Bank.  No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon.  No course of dealing or delay
or omission on the part of any Bank in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto.  No notice to or demand upon the Borrower
shall entitle the Borrower to other or further notice or demand in similar or
other circumstances.  Neither the
Administrative Agent nor any Bank has any fiduciary relationship with or
fiduciary duty to the Borrower arising out of or in connection with this Credit
Agreement or any of the other Loan Documents, and the relationship between the
Administrative Agent and the Banks, on the one hand, and the Borrower, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor.


 


26.           NO
WAIVER; CUMULATIVE REMEDIES.


 


No
failure by any Bank or the Administrative Agent or the Borrower to exercise,
and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder or any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided, and provided under each other Loan Document, are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by law.


 


27.           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.


 


28.           USA
PATRIOT Act Notice.


 


Each
Bank that is subject to the Act (as hereinafter defined) and the Administrative
Agent (for itself and not on behalf of any Bank) hereby notifies the Borrower
that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Bank or the Administrative Agent, as
applicable, to identify the Bank in accordance with the Act.


 


THE REMAINDER OF THIS
PAGE IS INTENTIONALLY LEFT BLANK


 


67

















 


IN
WITNESS WHEREOF, the undersigned have duly executed this Credit Agreement as of
the date first set forth above.


 


	
  BORROWER:

  	
  ALLIANCE
  CAPITAL MANAGEMENT L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Alliance
  Capital Management

  Corporation, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John J. Onofrio, Jr.

  	
   

  
	
   

  	
  Name:

  	
  John
  J. Onofrio, Jr.

  
	
   

  	
  Title:

  	
  Vice
  President and Treasurer

  



 


Signature Page - 1

















 


	
  ADMINISTRATIVE
  AGENT :

  	
  BANK
  OF AMERICA, N.A., as Administrative

  
	
  AND
  BANKS

  	
  Agent
  and a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sean W.
  Cassidy

  	
   

  
	
   

  	
  Name:

  	
  Sean W. Cassidy

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  



 


Signature Page - 2

















 


	
   

  	
  THE BANK OF NEW
  YORK, as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Joanne Carey

  	
   

  
	
   

  	
  Name:

  	
  Joanne Carey

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page - 3

















 


	
   

  	
  CITIBANK, N.A.,
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Alexander Duka

  	
   

  
	
   

  	
  Name:

  	
  Alexander Duka

  
	
   

  	
  Title:

  	
  Managing
  Director

  



 


Signature Page - 4

















 


	
   

  	
  DEUTSCHE BANK
  AG, NEW YORK BRANCH, as a

  Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Ruth Leung

  	
   

  
	
   

  	
  Name:

  	
  Ruth Leung

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kathleen Bowers

  	
   

  
	
   

  	
  Name:

  	
  Kathleen Bowers

  
	
   

  	
  Title:

  	
  Director

  



 


Signature Page - 5

















 


	
   

  	
  JPMORGAN CHASE
  BANK, N.A., as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Jeanne O’Connell
  Horn

  	
   

  
	
   

  	
  Name:

  	
  Jeanne O’Connell
  Horn

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page - 6

















 


	
   

  	
  CREDIT SUISSE,
  CAYMAN ISLANDS BRANCH as a

  Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Jay Chall

  	
   

  
	
   

  	
  Name:

  	
  Jay Chall

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  James Neira

  	
   

  
	
   

  	
  Name:

  	
  James Neira

  
	
   

  	
  Title:

  	
  Associate

  



 


Signature Page - 7

















 


	
   

  	
  HSBC BANK USA,
  NATIONAL ASSOCIATION, as a

  Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  William J.
  Wilson

  	
   

  
	
   

  	
  Name:

  	
  William J.
  Wilson

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  



 


Signature Page - 8

















 


	
   

  	
  STATE STREET
  BANK AND TRUST COMPANY, as

  a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Paul J.
  Koobatian

  	
   

  
	
   

  	
  Name:

  	
  Paul J.
  Koobatian

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page - 9

















 


	
   

  	
  MERRILL LYNCH
  BANK USA, as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Louis Adler

  	
   

  
	
   

  	
  Name:

  	
  Louis Adler

  
	
   

  	
  Title:

  	
  Director

  



 


Signature Page - 10

















 


	
   

  	
  ABN AMRO BANK
  N.V., as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Raymond Walsh

  	
   

  
	
   

  	
  Name:

  	
  Raymond Walsh

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Bryan Manning

  	
   

  
	
   

  	
  Name:

  	
  Bryan Manning

  
	
   

  	
  Title:

  	
  Group Vice
  President

  



 


Signature Page - 11

















 


	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Barry Groveman

  	
   

  
	
   

  	
  Name:

  	
  Barry Groveman

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page - 12

















 


	
   

  	
  WACHOVIA BANK,
  NATIONAL ASSOCIATION, as

  a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Grainne
  Pergolini

  	
   

  
	
   

  	
  Name:

  	
  Grainne
  Pergolini

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page - 13