UNCOMMITTED LINE OF CREDIT AGREEMENT
Exhibit
10.09
Uncommitted Line of Credit Agreement
(as amended or otherwise modified from time to time, this “Agreement”), dated as of
January 23, 2008, is between AllianceBernstein L.P., a Delaware limited
partnership (the “Borrower”), and Citibank, N.A.
(the “Lender”).
The Borrower and the Lender hereby
agree as follows:
1. (a) The
Lender agrees to consider from time to time, from the Effective Date (as defined
in Section 8) until March 28, 2008 (such date, or the earlier termination of
this Agreement pursuant to Section 11, being the “Termination Date”), the
Borrower’s requests that the Lender make advances (“Advances”) to it in an
aggregate amount not to exceed $100,000,000.00 (One Hundred Million Dollars) at
any one time outstanding. The proceeds of the Advances are to be used solely as
a commercial paper backstop and/or for general corporate
purposes. This
letter is not a commitment to lend but rather sets forth the procedures to be
used in connection with the Borrower’s requests for the Lender’s making of
Advances to it from time to time on or prior to the Termination Date and, if the
Lender makes Advances to the Borrower hereunder, the Borrower’s obligations to
the Lender with respect thereto.
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(b)
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The
following terms used herein shall have the following
meanings:
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“Base Rate” means a fluctuating rate
of interest announced publicly by Citibank, N.A. in New York, New York from time
to time as its base rate.
“Business Day” means any
day of the year on
which banks are not required or authorized by law to close in New York
City.
“General Partner” means
AllianceBernstein Corporation, a Delaware corporation, in its capacity as
general partner of the Borrower.
“Maximum Rate” means the
maximum rate of non-usurious interest permitted by applicable law.
“Quoted Rate” means, for any
Quoted Rate Advance, a rate quoted by the Lender and agreed to by the Borrower
for such Advance.
2. Each request by the
Borrower to the Lender for an Advance based on a Quoted Rate (a “Quoted Rate Advance”) will be
given not later than 11:00 A.M. (New York City time) on the date of such
proposed Advance. Each request will specify (i) the date on which the
Borrower wishes the Advance to be made (which will be a Business Day), (ii) the
amount it wishes to borrow (which will be in the amount of $1,000,000 or an
integral multiple thereof) and (iii) the interest period (“Interest Period”) it wishes to
apply to such Advance. The duration of each Interest Period will be a
term requested by the Borrower and agreed to by the Lender, provided that (i) the
Borrower may not select any Interest Period that ends after the Termination
Date; and (ii) whenever the last day of an Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period will be
extended to occur on the next succeeding Business Day. If the Lender agrees to
make such Advance, it will make such funds available to the Borrower in same day
funds by crediting to the following account, or as otherwise specified by the
Borrower, prior to the making of such Advance:
Citibank,
N.A.
ABA#
▇▇▇▇▇▇▇▇▇
Account
of AllianceBernstein L.P.
Account #
3047-1962
3. The Borrower will repay
the principal amount of each Advance on the earliest to occur of a DEMAND, the
last day of the Interest Period for such Advance and the Termination Date,
together with accrued interest thereon. The Borrower may prepay any
Advance made to it in whole or in part on any Business Day, provided that (i) the
Borrower has given the Lender at least three Business Days’ irrevocable written
notice of such prepayment (and on the date specified for such prepayment in such
notice, the Borrower will prepay the amount of the Advance to be prepaid,
together with accrued interest thereon to the date of prepayment and any other
amounts payable by the Borrower pursuant to Section 15), and (ii) each partial
prepayment will be in a principal amount of at least $1,000,000.
4. The Borrower will pay interest on
the unpaid principal amount of each Advance made to it from the date of such
Advance until such principal amount is paid in full at a rate equal to the
Quoted Rate for such Advance, payable in arrears on DEMAND, or if no demand has
been made, on the last day of the Interest Period for such
Advance. Any overdue amount of principal, interest or other amount
payable hereunder will bear interest, payable on demand, at the Base Rate plus 2% per
annum; provided
that the interest rate shall not exceed the Maximum Rate.
5. Promptly after the making
of a Quoted Rate Advance, the Lender will send the Borrower a written
confirmation of the Quoted Rate and Interest Period therefor. Unless
the Borrower objects in writing to the information contained in such
confirmation within three Business Days after the Lender’s sending of such
confirmation to the Borrower, the Borrower will be deemed to have
unconditionally agreed for all purposes to the correctness of such
information. If the Borrower so objects to the Quoted Rate set forth
in any such confirmation, such Quoted Rate Advance will be payable with interest
at the Base Rate rather than at the Quoted Rate so objected to. Any Quoted Rate
Advance bearing interest at the Base Rate pursuant to this Section
will continue to be an “Advance” for the purposes of this
Agreement.
6. If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or directive duly adopted
by any central bank or other governmental authority (whether or not having the
force of law) with
respect to the regulation of banks, monetary policy, lending, investments, or
other financial matters, there is any increase in the cost to the Lender of
agreeing to make or making, funding or maintaining Advances, then the Borrower
will from time to time, upon the Lender’s demand, pay to the Lender additional
amounts sufficient to compensate the Lender for such increased
cost. In addition, if the Lender determines that compliance with any
law or regulation or any guideline or directive duly adopted by any central bank
or other governmental authority (whether or not having the force of law) after
the date hereof affects or would affect the amount of capital required or
expected to be maintained by the Lender or any corporation controlling the
Lender and that the amount of such capital is increased by or based upon the
existence of Advances hereunder, then, upon the Lender’s demand, the Borrower
will immediately pay to the Lender, from time to time as specified by the
Lender, additional amounts sufficient to compensate the Lender or such
corporation in the light of such circumstances, to the extent that the Lender
reasonably determines such increase in capital to be allocable to the existence
of the Advances hereunder. A certificate as to such
amounts and a brief explanation of such amounts which are due and in reasonable
detail the basis of the calculation and allocation thereof submitted to the
Borrower by the Lender will be conclusive evidence, absent manifest error, that
such amounts are due. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for the Lender to fund or
maintain Advances made hereunder, then, on notice thereof and demand therefor
made by the Lender, each Advance will automatically, upon such demand, convert
into an Advance accruing interest at the Base Rate. Any Advance
accruing interest at the Base Rate will continue to be an “Advance” for the
purposes of this Agreement.
7. The Borrower will make
each payment (whether in respect of principal, interest or otherwise) payable by
it hereunder, irrespective of any right of counterclaim or set-off, not later
than 2:00 P.M. (New York City time) on the day when due in U.S. dollars to the
Lender at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ in same day
funds. The Borrower hereby authorizes the Lender, if and to the
extent payment owed to the Lender is not made when due hereunder, to charge from
time to time against any or all of the Borrower’s accounts with the Lender or
any of the Lender’s affiliates any amount so due. All computations of
interest will be made by the Lender on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest is
payable. Each determination by the Lender of an interest rate
hereunder will be conclusive and binding for all purposes, absent manifest
error. Whenever any payment hereunder is stated to be due on a day
other than a Business Day, such payment will be made on the next succeeding
Business Day, and such extension of time will in such case be included in the
computation of payment of interest.
8. This Agreement will
become effective on and as of the first date (the “Effective Date”) on which the
Lender has received the following, each in form and substance satisfactory to
the Lender: (i) a counterpart of this Agreement duly executed by the Lender and
the Borrower; (ii) certified copies of the resolutions of the General Partner’s
Board of Directors or any committee thereof approving this Agreement, and of all
other documents evidencing necessary action and governmental and other third
party approvals, if any, with respect to this Agreement; and (iii) a certificate
of the General Partner’s Secretary or Assistant Secretary certifying the names
and true signatures of the General Partner’s officers authorized to sign this
Agreement and the other documents to be delivered hereunder and to request
Advances hereunder (“Designated
Officers”).
9. Each request by the
Borrower for an Advance and the acceptance by the Borrower of the proceeds of
such Advance will constitute a representation and warranty by the Borrower that
on the date of such Advance the representations and warranties contained in
Section 10 are correct on and as of the date of such Advance, before and after
giving effect to such Advance and to the application of the proceeds therefrom,
as though made on and as of such date (other than any such representations or
warranties that, by their terms, refer to a date other than the date of such
Advance). In addition, the Borrower agrees to deliver to the Lender
such other documents and other information requested by the Lender in connection
with an Advance requested by the Borrower.
10. The Borrower represents
and warrants as follows:
(a) The
Borrower is a limited partnership duly organized, validly existing, and, if
applicable, in good standing, under the laws of the State of Delaware and has
all requisite partnership power to own its material properties and conduct its
material business as now conducted and as presently contemplated.
(b) The
execution, delivery, and performance of this Agreement by the Borrower and the
transactions contemplated hereby (i) are within the partnership’s power, (ii)
have been duly authorized by all necessary partnership proceedings and (iii) do
not contravene (x) its limited partnership certificate or limited partnership
agreement or (y) any law or any contractual restriction binding on or affecting
it.
(c) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is
required for the due execution, delivery and performance by the Borrower of this
Agreement.
(d) This
Agreement has been duly executed and delivered by the Borrower and is
its legal, valid and binding obligation enforceable against the Borrower in
accordance with its terms, except to the extent that enforcement may be limited
by applicable bankruptcy, insolvency and other similar laws affecting creditors’
rights generally.
(e) The
consolidated balance sheet of the Borrower and its subsidiaries as at December
31, 2006, and the related consolidated statements of income and cash flow of the
Borrower and its subsidiaries for the fiscal year then ended, accompanied by an
opinion of the Borrower’s independent certified public accountants, fairly
present the consolidated financial condition of the Borrower and its
subsidiaries as at such date and the consolidated results of operations of the
Borrower and its subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied
and all included in the Borrower’s most recent Form 10-K filed with the
Securities and Exchange Commission (“2006 Form 10-K”).
(f)
Except as disclosed in the 2006 Form 10-K, since December 31, 2006 there has
been no material adverse change in the business, operations, condition
(financial or otherwise) or prospects of the Borrower and its subsidiaries taken
as a whole.
(g)
Except as disclosed in the 2006 Form 10-K, there is no pending or threatened
action, suit, investigation, litigation or proceeding affecting the Borrower or
its subsidiaries before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of the Borrower and
its subsidiaries taken as a whole, the Lender’s rights and remedies under this
Agreement, or the Borrower’s ability to perform its obligations under this
Agreement, or (ii) purports to affect the legality, validity or enforceability
of this Agreement or the consummation of the transactions contemplated
hereby.
(h) The
Borrower is not an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940,
as amended.
(i) No
report, financial statement, certificate or other information furnished (whether
in writing or orally) by or on behalf of the Borrower to the Lender in
connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to any projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.
(j) No
proceeds of any Advance will be used to purchase or carry any margin stock
(within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System) or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
11. This Agreement may be
terminated by the Borrower or the Lender by giving written notice of termination
to the other parties hereto, but no such termination will affect the Borrower’s
obligations with respect to Advances outstanding at the time of such
termination. The Lender may amend or modify the terms and conditions
of this Agreement at any time without prior notice to the Borrower and without
the Borrower’s consent, but no such amendment or modification will affect the
Borrower’s obligations with respect to Advances outstanding at the time of such
amendment or modification. At the time the Borrower makes a request
for an Advance, the Lender agrees to notify the Borrower of any such amendment
or modification, provided that neither
the Lender’s agreement to so notify the Borrower, nor the Lender’s failure to so
notify the Borrower, will affect the uncommitted nature of this
Agreement.
12. All notices and other
communications provided for hereunder will be in writing (including telecopier
communication) and mailed, telecopied or delivered, if to the Borrower, at its
address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Telecopy
Number: 212-823-3250), Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Vice President and
Treasurer; if to the Lender, at its address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Telecopy Number: 646-291-1703), Attention: ▇▇▇▇▇▇▇▇▇
▇▇▇▇; or, as to either party, at such other address as is designated by such
party in a written notice to the other party. All such notices and
communications will, when mailed or telecopied, be effective three Business Days
after deposit in the mails, or when telecopied, confirmation has been received
by the sender, except that notices and communications mailed to the Lender
pursuant to Sections 2, 3 or 11 will not be effective until received by the
Lender.
13. No failure on the
Lender’s part to exercise, and no delay in exercising, any right hereunder will
operate as a waiver thereof; nor will any single or partial exercise of any such
right preclude any other or further exercise thereof or the exercise of any
other right. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
14. (a) The
Borrower agrees to pay on demand all of the Lender’s out-of-pocket costs and
expenses (including without limitation, reasonable counsel fees and expenses) in
connection with the preparation, execution, delivery, administration,
modification, amendment and enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement.
(b) The Borrower will
indemnify and hold harmless the Lender, its affiliates and each of its and their
respective officers, directors, employees, agents, advisors and representatives
(each, an “Indemnified
Party”) from and against any and all claims, damages, losses, liabilities
and expenses (including without limitation, fees and disbursements of counsel),
that may be incurred by or asserted or awarded against any Indemnified Party
(including without limitation, in connection with any investigation, litigation
or proceeding, or the preparation of a defense in connection therewith), in each
case arising out of or in connection with this Agreement, any of the
transactions contemplated hereby or any actual or proposed use of the proceeds
of the Advances, except to the extent such claim, damage, loss, liability or
expense is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted primarily from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section applies,
such indemnity will be effective whether or not such investigation, litigation
or proceeding is brought by the Borrower, any of its directors, security holders
or creditors, an Indemnified Party or any other person, or any Indemnified Party
is otherwise a party thereto, and whether or not the transactions contemplated
hereby are consummated.
(c) No Indemnified Party
will have any liability (whether in contract, tort or otherwise) to the Borrower
or any of its security holders or creditors for or in connection with the
transactions contemplated hereby, except for direct damages (as opposed to
special, indirect, consequential or punitive damages (including without
limitation, any loss of profits, business or anticipated savings)) determined in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party’s gross negligence or willful
misconduct.
15. If the Borrower fails to
borrow or prepay any Advance after the Borrower has given the Lender notice
thereof and, in the case of a borrowing, the Lender has agreed to make such
Advance and the Borrower does not object to the Quoted Rate and Interest Period
pursuant to the instructions set forth in Section 5 hereof, the Borrower will,
upon demand by the Lender, pay the Lender any amounts required to compensate the
Lender for any losses, costs or expenses that the Lender may reasonably incur as
a result of such payment or failure to borrow or prepay.
16. This Agreement is
binding upon and will inure to the benefit of the Borrower, the Lender and their
respective successors and assigns, except that the Borrower will not have the
right to assign its rights or obligations hereunder or any interest herein
without the Lender’s prior written consent. The Lender may, with the
written consent of the Borrower (which consent will not be unreasonably
withheld), assign to one or more persons all or a portion of its rights and
obligations under this Agreement, provided that the
consent of the Borrower will not be required in connection with an assignment to
an affiliate of the Lender. Notwithstanding any other provisions set
forth in this Agreement, the Lender may at any time create a security interest
in all or any portion of the Lender’s rights under this Agreement in favor of
any Federal Reserve Bank.
17. This Agreement will be
governed by, and construed in accordance with, the laws of the State of New
York. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed will be deemed to be an original and all of which taken together will
constitute one and the same agreement.
18. The Borrower hereby
irrevocably (i) submits to the non-exclusive jurisdiction of any New York State
or Federal court sitting in New York City in any action or proceeding arising
out of or relating to this Agreement, (ii) agrees that all claims in respect of
such action or proceeding may be heard and determined in such New York State
court or in such Federal court, (iii) waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding, and (iv) irrevocably consents to the service of any
and all process in any such action or proceeding by the mailing of copies of
such process to the Borrower at its address specified in Section 12. The
Borrower agrees that a final non-appealable judgment in any such action or
proceeding will be conclusive and may be enforced in other jurisdictions by suit
on the judgment or in any other manner provided by law. Nothing
herein will affect the Lender’s right to serve legal process in any other manner
permitted by law or affect the Lender’s right to bring any action or proceeding
against the Borrower or its property in the courts of other
jurisdictions.
19. If a payment has not
been made by the Borrower when due hereunder, the Lender and each of its
affiliates is authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
obligations at any time owing by the Lender or any of its affiliates to or for
the Borrower’s credit or account against any and all of the Borrower’s
obligations now or hereafter existing under this Agreement, irrespective of
whether the Lender has made demand under this Agreement and although such
obligations may be unmatured. The Lender shall promptly notify the
Borrower after any such set-off and application, provided that any failure to
give or any delay in giving notice shall not affect the validity of any such
set-off or application under this Section. The Lender’s rights under
this Section are in addition to other rights and remedies (including without
limitation, other rights of set-off) which the Lender may have.
20. Each of the parties
hereto hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement, the Advances or the Lender’s
actions in the negotiation, administration, performance or enforcement hereof or
thereof.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their respective
officers thereunto duly authorized, as of the date first above
written.
| ALLIANCEBERNSTEIN L.P. | |||
| ALLIANCEBERNSTEIN CORPORATION | |||
| By: |
/s/ ▇▇▇▇. ▇. ▇▇▇▇▇▇▇, ▇▇
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| Name: |
▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇.
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| Title: |
Vice
President and Treasurer
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CITIBANK,
N.A.
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| By: |
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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| Name: |
▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇
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| Title: |
Managing
Director
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