EXHIBIT 1.1
Execution Copy
ALLIANCE CAPITAL MANAGEMENT L.P.
DEBT SECURITIES
Underwriting Agreement
August 7, 2001
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Alliance Capital Management L.P., a Delaware limited partnership (the
"Company"), proposes to issue and sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture
specified in Schedule I hereto (the "Indenture") between the Company and the
Trustee identified in such Schedule (the "Trustee"). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule
I hereto, then the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed with, or proposes
to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The registration
statement as amended to the date of this Agreement is hereinafter referred to
as the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange
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Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") on or before the date of this
Agreement or the date of the Basic Prospectus, any preliminary prospectus or
the Prospectus, as the case may be; and any reference to "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. (a) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives on the date and at the time and place set forth in Schedule I
hereto (or at such other time and place on the same or such other date, not
later than the fifth Business Day (as defined below) thereafter, as you and the
Company may agree in writing). The Company shall specify such account no later
than noon the Business Day (as defined below) prior to the Closing Date (as
defined below). As used herein, the term "Business Day" means any day other
than a day on which banks are permitted or required to be closed in New York
City. The time and date of such payment and delivery with respect to the
Securities are referred to herein as the "Closing Date".
(b) Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes (the "Global
Note") representing the Securities, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Securities duly paid by
the Company. The Global Note will be made available for inspection by the
Representatives not later than 1:00 P.M., New York City time, on the Business
Day prior to the Closing Date.
4. The Company represents and warrants to each Underwriter that:
(a) (i) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company, threatened in writing by the
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Commission; (ii) the Registration Statement (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto)
complies, or will comply, as the case may be, in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission thereunder (collectively,
the "Trust Indenture Act); (iii) each part of the Registration Statement,
when such part became effective, did not contain, and each such part when
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading; (iv) the Prospectus did not, as of the date of the Prospectus
and any amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (v) the
Prospectus, as amended or supplemented at the Closing Date, if applicable,
will not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the foregoing representations and warranties shall not apply
to (i) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use therein;
(b) the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(c) the financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated and
the results of their operations and the changes in their consolidated cash
flows for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly in
all material respects the information required to be stated therein;
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(d) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material change in the partnership interests or capital stock, as the case
may be, or long-term debt of the Company or any of its subsidiaries, or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
management, financial position, partners' capital or results of operations
of the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus, neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent, or entered into any transaction or agreement (in either case,
whether or not in the ordinary course of business) material to the Company
and its subsidiaries taken as a whole;
(e) the Company has been duly formed and is validly existing and in
good standing under the laws of Delaware, with power and authority
(partnership and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
partnership for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(f) each of Sanford C. Bernstein & Co., LLC and Alliance Fund
Distributors Inc. (the "Designated Subsidiaries") has been duly
incorporated or formed, as the case may be, and is validly existing under
the laws of its jurisdiction of incorporation or formation, as the case
may be, with power and authority (corporate, partnership or other, as the
case may be) to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign corporation or
partnership, as the case may be, for the transaction of business and is in
good standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and all the outstanding shares of capital
stock or membership interests, as the case may be, of each Designated
Subsidiary of the Company have been duly authorized and validly issued,
are fully-paid and non-assessable, and (except for directors' qualifying
shares and except as described in the Prospectus) are owned by the
Company, directly or indirectly, free and clear of any material liens,
encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and delivered
by the Company;
(h) the Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and the Indenture, will have been
duly executed, authenticated, issued and delivered and will constitute
valid and binding obligations of the Company entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized and upon
effectiveness of the Registration Statement will have been duly
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qualified under the Trust Indenture Act and, when executed and delivered
by the Company and the Trustee, the Indenture will constitute a valid and
binding instrument; and the Securities and the Indenture will conform to
the descriptions thereof in the Prospectus;
(i) neither the Company nor any of its Designated Subsidiaries is, or
with the giving of notice or lapse of time or both would be, in violation
of or in default under, its organizational documents or any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which it
or any of them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole; the issue
and sale of the Securities and the performance by the Company of all its
obligations under the Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will any such action
result in any violation of the provisions of the organizational documents
of the Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their respective properties;
and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been or will be obtained
under the Securities Act, the Trust Indenture Act and as may be required
under state securities or Blue Sky Laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(j) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have, or reasonably be expected to have, a material adverse
effect on the general affairs, business, management, financial position,
partners' capital or results of operations of the Company and its
subsidiaries taken as a whole and, to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others; and there are no statutes, regulations, contracts or
other documents that are required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required;
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(k) immediately after any sale of Securities by the Company
hereunder, the aggregate amount of Securities which have been issued and
sold by the Company hereunder and of any securities of the Company (other
than the Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of securities registered
under the Registration Statement;
(l) KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries, are independent public accountants as
required by the Securities Act;
(m) the Company and its Designated Subsidiaries have good and
marketable title in fee simple to all items of real property and good and
marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects except such as are
described or referred to in the Prospectus or such as are not material to
the Company and its subsidiaries taken as a whole; and any material real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, existing and enforceable leases
with such exceptions as are not material to the Company and its
subsidiaries taken as a whole;
(n) the Company is not and, after giving effect to the offering and
sale of the Securities, will not be required to be registered as an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended (the "Investment Company Act");
(o) the Company and each of Alliance Capital Global Derivatives
Corp., Alliance Corporate Finance Group, Inc., Cursitor Alliance LLC,
Meiji-Alliance Capital Corporation, Sanford C. Bernstein & Co., LLC,
Alliance Asset Allocation Limited and Cursitor Eaton Management Co. (the
"Investment Adviser Subsidiaries") are duly registered as investment
advisers under the Investment Advisers Act of 1940, as amended (the
"Advisers Act") and neither the Company nor any Investment Adviser
Subsidiary is prohibited by any provision of the Advisers Act or the
Investment Company Act, or the respective rules and regulations
thereunder, from acting as an investment adviser; the Investment Adviser
Subsidiaries are the only direct or indirect subsidiaries of the Company
required to be registered as investment advisers under the Advisers Act;
each of the Company and each Investment Adviser Subsidiary is duly
registered, licensed or qualified as an investment adviser in each
jurisdiction where the conduct of its business requires such registration,
licensing or qualification and is in compliance with all federal, state
and foreign laws requiring any such registration, licensing or
qualification, except where the failure to be so registered, licensed or
qualified or to be in such compliance would not result in any material
liability or disability to the Company or its subsidiaries taken as a
whole; and none of the Company or its other direct or indirect
subsidiaries is required to be registered, licensed or qualified as an
investment adviser under the laws requiring any such registration,
licensing or qualification in any jurisdiction in which it or its
subsidiaries conduct business, except where the failure to be so
registered, licensed or qualified would not result in any material
liability or disability to the Company or its subsidiaries taken as a
whole;
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(p) each of the Designated Subsidiaries is duly registered, licensed
or qualified as a broker-dealer under the Exchange Act, and under the
securities laws of each jurisdiction where the conduct of its business
requires such registration and is in compliance with all federal, state
and foreign laws requiring such registration, licensing or qualification,
except where the failure to be so registered, licensed or qualified or to
be in such compliance would not result in any material liability or
disability to the Company or its subsidiaries taken as a whole; each of
the Designated Subsidiaries is a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"); and neither the
Company nor any of the Company's other direct or indirect subsidiaries is
required to be registered, licensed or qualified as a broker-dealer under
the laws requiring any such registration, licensing or qualification in
any jurisdiction in which it conducts business, except where the failure
to be so registered, licensed or qualified would not result in any
material liability or disability to the Company or its subsidiaries taken
as a whole;
(q) none of the Company or its direct or indirect subsidiaries, other
than Alliance Global Investor Services, Inc., is required to be
registered, licensed or qualified as a transfer agent under the federal or
state laws requiring any such registration, licensing or qualification in
any state in which it conducts business, except where the failure to be so
registered, licensed or qualified would not result in any material
liability or disability to the Company or its subsidiaries taken as a
whole; Alliance Global Investor Services, Inc. is duly registered,
licensed and qualified as a transfer agent under applicable federal laws
and state laws in each state in which the conduct of its business requires
it to be so registered, licensed and qualified;
(r) the Company, each Investment Adviser Subsidiary and each of the
Designated Subsidiaries are and have been in compliance with, and no such
entity has received notice of any violation of, (i) any law, regulation,
ordinance or rule (including those of any non-governmental self-regulatory
agencies) applicable to it or its operations relating to investment
advisory or broker-dealer activities, as the case may be or (ii) any other
law, regulation, ordinance or rule applicable to it and its operations,
since, in either case, January 1, 1998, except, in either case, where any
failure to comply with any such law, regulation, ordinance or rule would
not have, individually or in the aggregate, a material adverse effect on
the Company and its subsidiaries taken as a whole;
(s) the Company has no reason to believe that any entity for which
the Company or any Investment Adviser Subsidiary acts as investment
adviser that is required to be registered with the Commission as an
investment company under the Investment Company Act (each such entity, a
"Fund") is not duly registered with the Commission as an investment
company under the Investment Company Act; and to the knowledge of the
Company, each Fund has been operated in compliance in all material
respects with the Investment Company Act and the rules and regulations
thereunder, there are no facts with respect to any such Fund that are
likely to have a material adverse effect on the Company and its
subsidiaries taken as a whole and each Fund's registration statement
complies in all material respects with the provisions of the Securities
Act, the Investment Company Act and the rules and regulations thereunder
and does not contain
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any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading;
(t) each agreement between the Company, any Investment Adviser
Subsidiary, or any other subsidiary of the Company on the one hand and any
Fund or private client on the other is a legal and valid obligation of the
Company, such Investment Adviser Subsidiary, or such other subsidiary of
the Company, as the case may be, and none of the Company, any Investment
Adviser Subsidiary or any other subsidiary of the Company is in breach or
violation of or in default under any such agreement which would
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole.
5. The Company covenants and agrees with each of the several Underwriters
as follows:
(a) to file the Prospectus in a form approved by you pursuant to Rule
424 under the Securities Act not later than the Commission's close of
business on the second Business Day following the date of determination of
the offering price of the Securities or, if applicable, such earlier time
as may be required by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment thereto,
in each case including exhibits and documents incorporated by reference
therein and, during the period mentioned in paragraph (e) below, to
furnish each of the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request;
(c) from the date hereof and prior to the Closing Date, to furnish to
you a copy of any proposed amendment or supplement to the Registration
Statement or the Prospectus, for your review, and not to file any such
proposed amendment or supplement to which you reasonably object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities, and during such same period,
to advise you promptly, and to confirm such advice in writing, (i) when
any amendment to the Registration Statement shall have become effective,
(ii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for any additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the initiation or threatening of any proceeding for that purpose, and
(iv) of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of any
such stop order or notification and, if issued, to obtain as soon as
possible the withdrawal thereof;
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(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to
be delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the Company, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Securities
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, such amendments or supplements to the Prospectus as
may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Securities; provided that the
Company shall not be required to file a general consent to service of
process in any jurisdiction;
(g) to make generally available to its security holders and to you as
soon as practicable an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring
after the "effective date" (as defined in Rule 158) of the Registration
Statement;
(h) so long as the Securities are outstanding, to furnish to you,
upon request, copies of all reports or other communications (financial or
other) furnished to holders of Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the
Securities;
(j) to use the net proceeds received by the Company from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds"; and
(k) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities, including any expenses of
the Trustee, (ii) incident to the preparation, printing and filing under
the
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Securities Act of the Registration Statement, the Prospectus and any
preliminary prospectus (including in each case all exhibits, amendments
and supplements thereto), (iii) incurred in connection with the
registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the
Underwriters may designate (including reasonable fees of counsel for the
Underwriters and their disbursements), (iv) related to any filing with
National Association of Securities Dealers, Inc., (v) in connection with
the printing (including word processing and duplication costs) and
delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, (vi) payable to rating agencies in connection with the rating of
the Securities, (vii) any expenses incurred by the Company in connection
with a "road show" presentation to potential investors and (viii) the cost
and charges of any transfer agent.
6. The several obligations of the Underwriters hereunder shall be subject
to the following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made on
and as of the Closing Date and the Company shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant
to Rule 424 within the applicable time period prescribed for such filing
by the rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to your
satisfaction;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any downgrading, (ii) any
intended or potential downgrading or (iii) any review or possible change
that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in
the Prospectus there shall not have been any material change in the
partnership interests or capital stock, as the case may be, or long-term
debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, management,
financial position, partners' capital or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representatives makes it
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impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in
the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of the general partner of the
Company, with specific knowledge about the Company's financial matters,
satisfactory to you to the effect set forth in subsections (a) through (c)
(with respect to the respective representations, warranties, agreements
and conditions of the Company) of this Section and to the further effect
that there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, management, financial position,
partners' capital or results of operations of the Company and its
subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement;
(f) The Company's General Counsel shall have furnished to you his
written opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) neither the Company nor any of its Designated Subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, its organizational documents or any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of
its subsidiaries is a party or by which it or any of them or any of
their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to
the Company and its subsidiaries taken as a whole; the issue and sale
of the Securities and the performance by the Company of its
obligations under the Securities, the Indenture and this Agreement
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will any such
action result in any violation of the provisions of the
organizational documents of the Company or any applicable law or
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, its subsidiaries
or any of their respective properties;
(ii) the Company and each Investment Adviser Subsidiary are duly
registered as investment advisers under the Advisers Act; after due
inquiry, to such counsel's knowledge, (a) none of the Company's
Subsidiaries other than the Investment Adviser Subsidiaries is
required to be registered, licensed or qualified as an investment
adviser under the Advisers Act and the rules and regulations of the
Commission promulgated thereunder or the laws of the State of New
York; and (b) the Company and each Investment Adviser Subsidiary are
in compliance with the Advisers Act and New York laws, regulations,
ordinances and rules
12
applicable to them or their respective operations relating to
investment advisory activities except where any failure to comply
with any such law, regulation, ordinance or rule would not have,
individually, or in the aggregate, a material adverse effect on the
Company and its subsidiaries taken as a whole; and
(iii) each of the Designated Subsidiaries is duly registered,
licensed or qualified as a broker-dealer under the Exchange Act;
after due inquiry, to such counsel's knowledge, (a) neither the
Company nor any of the Company's other direct or indirect
subsidiaries is required to be registered, licensed or qualified as a
broker-dealer under the Exchange Act and the rules and regulations of
the Commission promulgated thereunder or under the laws of the State
of New York and (b) each of the Designated Subsidiaries is in
compliance with the Exchange Act and New York laws and regulations
(including those of the NASD) applicable to it or its operations
relating to broker-dealer activities except where any failure to
comply with any such law, regulation, ordinance or rule would not
have, individually or in the aggregate, a material adverse effect on
the Company and its subsidiaries taken as a whole;
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the State of New York, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to Underwriters' counsel) of other
counsel reasonably acceptable to the Underwriters' counsel, familiar with the
applicable laws; and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company or the
Company's general partner and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the existence
or good standing of the Company. The opinion of such counsel shall state that
the opinion of any such other counsel upon which he relied is in form
satisfactory to such counsel and, in such counsel's opinion, the Underwriters
and he are justified in relying thereon.
(g) Davis Polk & Wardwell, counsel for the Company, shall have
furnished to you their written opinion, dated the Closing Date, in form
and substance satisfactory to you, to the effect that:
(i) the Company has been duly formed and is validly existing and in
good standing under the laws of Delaware, with power and authority
(partnership and other) to own its properties and conduct its
business as described in the Prospectus as amended or supplemented;
(ii) the Company has been duly qualified as a foreign partnership for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other
than where the failure to be so qualified or in good standing would
not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
13
(iii) each of the Designated Subsidiaries has been duly incorporated
or formed, as the case may be, and is validly existing under the laws
of its jurisdiction of incorporation or formation, as the case may
be, with power and authority (corporate, partnership or other, as the
case may be) to own its properties and conduct its business as
described in the Prospectus and has been duly qualified as a foreign
corporation or partnership, as the case may be, for the transaction
of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified and in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as
a whole; and all of the issued shares of capital stock or membership
interests, as the case may be, of each Designated Subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares and
except as described in the Prospectus) are owned directly or
indirectly by the Company, free and clear of any material liens,
encumbrances, equities or claims;
(iv) other than as set forth or contemplated in the Prospectus, to
the best of such counsel's knowledge, there are no legal or
governmental investigations, actions, suits or proceedings pending or
threatened against or affecting the Company or any of its
subsidiaries or any of their respective properties or to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or its subsidiaries is or may be the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have, or
reasonably be expected to have, a material adverse effect on the
general affairs, business, management, financial position, partners'
capital or results of operations of the Company and its subsidiaries
taken as a whole; to such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others; and such counsel does not know of any statutes,
regulations, contracts or other documents required to be filed as an
exhibit to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not filed or
described as required;
(v) this Agreement has been duly authorized, executed and delivered
by the Company;
(vi) the Securities have been duly authorized, executed and delivered
by the Company and, when duly authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will
constitute valid and binding obligations of the Company entitled to
the benefits provided by the Indenture;
(vii) the Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding instrument of the
Company; and the Indenture has been duly qualified under the Trust
Indenture Act;
14
(viii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Securities
or the consummation of the other transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and the Trust Indenture
Act and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by
the Underwriters;
(ix) the statements in the Prospectus under "Description of Notes,"
"Description of Debt Securities" and "Underwriting", insofar as such
statements constitute a summary of the legal matters or documents
referred to therein, fairly present the information called for with
respect to such legal matters or documents;
(x) nothing has come to the attention of such counsel that causes
them to believe that (A) any document incorporated by reference in
the Registration Statement and the Prospectus as amended or
supplemented (other than the financial statements, financial
schedules and other financial and statistical data included therein,
as to which such counsel need express no opinion) did not comply as
to form when filed with the Commission in all material respects with
the Exchange Act, and the rules and regulations of the Commission
thereunder (B) any part of the Registration Statement (including the
documents incorporated by reference therein) (except for the
financial statements, financial schedules and other financial and
statistical data included therein, as to which such counsel need
express no belief), when such part became effective, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, (C) the Registration Statement and
the Prospectus and any amendments and supplements thereto (except for
the financial statements, financial schedules and other financial and
statistical data included therein, as to which such counsel need
express no opinion) did not comply as to form in all material
respects with the requirements of the Securities Act and the Trust
Indenture Act or (D) the Registration Statement or the Prospectus
(except for the financial statements, financial schedules and other
financial and statistical data included therein, as to which such
counsel need express no belief), on the date of this Agreement,
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as amended
or supplemented, if applicable, contains any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(xi) the Company is not and, after giving effect to the offering and
sale of the Securities, will not be required to be registered as an
"investment company", as such term is defined in the Investment
Company Act; and
15
(xii) such counsel is of the opinion ascribed to it in the Prospectus
under the caption "United States Federal Taxation";
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the State of New York, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to Underwriters' counsel) of other
counsel reasonably acceptable to the Underwriters' counsel, familiar with the
applicable laws; (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company or the Company's
general partner and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the existence or good
standing of the Company. The opinion of such counsel for the Company shall
state that the opinion of any such other counsel upon which they relied is in
form satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect to the
matters to be covered in subparagraph (x) above counsel may state their opinion
and belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendment or supplement
thereto but is without independent check or verification except as specified.
The opinion of Davis Polk & Wardwell described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
(h) on the date hereof and on the Closing Date, KPMG LLP shall have
furnished to you letters, dated such date, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(i) you shall have received on and as of the Closing Date an opinion
of Simpson Thacher & Bartlett, counsel to the Underwriters, with respect
to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters; and
(j) on or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as the
Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission
16
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representatives
expressly for use therein; provided, however, that the Company shall not be
liable to any Underwriter (or any person who controls any Underwriter) under
the indemnity agreement in this paragraph with respect to any preliminary
prospectus to the extent that such loss, claim, damage or liability of such
Underwriter (or such control person) results from the fact that such
Underwriter sold Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference) in any
case where such delivery is required by the Securities Act, if the Company has
previously furnished copies thereof to such Underwriter (or to the
Representatives) and the loss, claim, damage or liability of such Underwriter
(or such control person) results from an untrue or alleged untrue statement or
omission or alleged omission of a material fact contained in the preliminary
prospectus which was corrected in the Prospectus (or the Prospectus as amended
or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, the officers of the Company or its general
partner who sign the Registration Statement and each person who controls the
Company within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any preliminary
prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and expenses
17
shall be reimbursed as they are incurred. Any such separate firm for the
Underwriters and such control persons of Underwriters shall be designated in
writing by the first of the named Representatives on Schedule I hereto and any
such separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify
any Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for reasonable fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and
(ii) such Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person, unless
such settlement includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Securities (before deducting expenses) received by the Company
and the total underwriting discounts and the commissions received by the
Underwriters bear to the aggregate public offering price of the Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the
18
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amount of the
Securities set forth opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the National Association of Securities Dealers, Inc. or the Chicago
Board Options Exchange, (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities,
the other Underwriters shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names in
Schedule I
19
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions
as the Representatives may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of
Securities that any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of one-tenth of
such principal amount of Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Securities and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased, and arrangements
satisfactory to you and the Company for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly
or by the first of the named Representatives set forth in Schedule I hereto
alone on behalf of the Underwriters, and any such action taken by you jointly
or by the first of the named Representatives set forth in Schedule I hereto
alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
II hereto. Notices to the Company shall be given to it at 1345 Avenue of the
Americas, New York, New York, 10019; Attention: Chief Financial Officer
(telecopy: 212-969-2386) and General Counsel (telecopy: 212-969-1334).
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
20
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
ALLIANCE CAPITAL MANAGEMENT L.P.
By: ALLIANCE CAPITAL MANAGEMENT CORPORATION,
its general partner
By: /s/ Robert H. Joseph, Jr.
------------------------------------
Name: Robert H. Joseph, Jr.
Title: Senior Vice President and
Chief Financial Officer
Accepted: August 7, 2001
DEUTSCHE BANC ALEX. BROWN INC.
J.P. MORGAN SECURITIES INC.
Acting severally on behalf of
themselves and the several
Underwriters listed in
Schedule II hereto.
By: J.P. MORGAN SECURITIES INC.
By: /s/ Maria Sramek
-----------------------------
Name: Maria Sramek
Title: Vice President
SCHEDULE I
Representatives: Deutsche Banc Alex. Brown Inc.
J.P. Morgan Securities Inc.
Underwriting Agreement
dated: August 7, 2001
Registration Statement
No.: 333-64886
Title of Securities: 5.625% Notes due 2006
Aggregate principal
amount: $400,000,000
CUSIP: 018548AA5
ISIN: US018548AA58
Price to Public: 99.457% of the principal amount of the Securities.
Purchase Price: 98.857% of the principal amount of the Securities.
Indenture: Indenture dated as of August 10, 2001 between the
Company and The Bank of New York, as Trustee.
Maturity: August 15, 2006
Interest Rate: 5.625%
Interest Payment Dates: February 15 and August 15
Optional Redemption
Provisions: The notes may be redeemed, at the Company's option,
as a whole or in part at any time, at a redemption
price equal to the greater of (1) 100% of the
principal amount of the notes to be redeemed or (2)
the sum of the present values of the remaining
scheduled payments of principal and interest on the
notes to be redeemed, discounted to the date of
redemption on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at
the applicable treasury rate (as defined in the
Prospectus Supplement) plus 20 basis points for the
notes, plus in each case, accrued and unpaid
interest on the principal amount being redeemed to
the redemption date.
Sinking Fund Provisions: None
22
Other Provisions: None
Closing Date and
Time of Delivery: August 10, 2001. 10:00 a.m.
Closing Location: Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Address for Notices
to Underwriters: J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10014
Attention: Transaction Execution Group
SCHEDULE II
Principal Amount
of Securities
To Be Purchased by
Underwriter
------------------
Deutsche Banc Alex. Brown Inc.............................$142,000,000
J.P. Morgan Securities Inc. ..............................$142,000,000
Banc of America Securities LLC............................ $82,000,000
Fleet Securities, Inc..................................... $9,666,000
Salomon Smith Barney, Inc. ............................... $9,667,000
BNY Capital Markets, Inc. ................................ $9,667,000
Commerzbank Capital Markets Corp. ........................ $2,500,000
SG Cowen Securities Corporation .......................... $2,500,000
------------
Total.....................................................$400,000,000