[LOGO]
[LETTERHEAD]
December 9, 1997
First Trust of New York, National Association
100 Wall Street, Suite 2000
New York, NY 10005
Re: Increase in Size of the Commercial Paper Program of
Alliance Capital Management L.P. (the "Partnership")
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Ladies and Gentlemen:
Pursuant to Section 4(e) of the Issuing and Paying Agency Agreement, dated
March 21, 1996 (the "Agreement"), entered into between you and the Partnership,
we hereby notify you that, effective November 20, 1997, the Partnership has
authorized an increase in the aggregate principal amount of Commercial Paper
Notes that may be outstanding at any time from $100,000,000 to $250,000,000.
All terms used and not otherwise defined between herein shall have the
meanings specified in the Agreement.
Alliance Capital Management L.P.
By: Alliance Capital Management
Corporation, its General Partner
By: /s/ Robert Joseph, Jr.
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Name: Robert Joseph, Jr.
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Title: CFO
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Agreed to and accepted
this 16 day of December, 1997
First Trust of New York, National Association
as Issuing and Paying Agent
By: /s/ Kenneth M. Racioppo
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Name: Kenneth M. Racioppo
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Title: Assistant Vice President
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AMENDED AND RESTATED
COMMERCIAL PAPER DEALER AGREEMENT
This Commercial Paper Dealer Agreement, dated December 23, 1994, amended as of
March 21, 1996 and amended and restated as of December 19, 1997, confirms the
agreement among Goldman, Sachs & Co. ("Goldman"), formerly Goldman Sachs Money
Markets, L.P., NationsBanc Montgomery Securities, Inc. ("NMSI") and Alliance
Capital Management L.P. (the "Partnership") whereby each of Goldman and NMSI,
severally and not jointly, will act as a dealer with respect to the promissory
notes to be issued by the Partnership, which will be issued either in physical
bearer form or book-entry form. Each of Goldman and NMSI is also sometimes
referred to herein as a "Dealer" and collectively as the "Dealers." Notes in
book-entry form will be represented by master notes registered in the name of a
nominee of The Depository Trust Company ("DTC") and recorded in the book-entry
system maintained by DTC. The promissory notes shall (a) be issued in
denominations of not less than $100,000; (b) have maturities not exceeding 270
days from the date of issue; and (c) not contain any condition of redemption or
right to prepay. Such notes, including the master notes, shall hereinafter be
referred to as "Commercial Paper" or "Notes."
1. (a) The Partnership represents and warrants to the Dealers that: (i)
the Partnership has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware; (ii) this
Agreement and the issuing and paying agency agreement dated March 21, 1996 with
First Trust of New York, National Association, as successor to BankAmerica
National Trust Company (the "Issuing and Paying Agent", which term shall include
any successor issuing and paying agent to First Trust of New York, National
Association, under such agreement), a copy of which has been provided to each of
the Dealers (as such agreement may be amended or supplemented from time to time,
the "Issuing Agreement"), have been duly authorized, executed and delivered by
the Partnership and each constitutes the valid and legally binding obligation of
the Partnership enforceable in accordance with its respective terms subject to
any applicable law relating to or affecting indemnification for liability under
the securities laws, and except to the extent such enforceability may be limited
by bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and the applicability of equitable principles thereto whether in a
proceeding of law or in equity; (iii) the Notes have been duly authorized and,
when issued and duly delivered in accordance with the Issuing Agreement, will
constitute the valid and legally binding obligations of the Partnership,
enforceable in accordance with their terms, except to the extent such
enforceability may be limited by bankruptcy, insolvency or other similar laws
affecting creditors' rights generally and the applicability of equitable
principles thereto whether in a proceeding of law or in equity; (iv) the
information memorandum approved by the Partnership for distribution pursuant to
Section 7 hereof (the "Information Memorandum") and the Partnership's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996 and other
documents subsequently filed by the Partnership with the Securities and Exchange
Commission pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (together, the "Offering Materials"), taken as a
whole, except insofar as any information therein relates to Goldman or NMSI (or
their respective affiliates) in its capacity as dealer hereunder, do not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading; (v) the offer and sale of the Notes in the manner
contemplated by this Agreement will be exempt from the registration requirements
of the Securities Act of 1933, as amended (the "Act"), pursuant to Section
3(a)(3) thereof; and (vi) the Partnership 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.
(b) Each sale of a Note by the Partnership under this Agreement shall
constitute an affirmation that the foregoing representations and warranties
remain true and correct at the time of sale, and will remain true and correct at
the time of delivery, of such Note.
2. Each of the Dealers may, from time to time, but shall not be obligated
to, purchase Commercial Paper from the Partnership.
3. Prior to the initial issuance of Commercial Paper, the Partnership
shall have delivered to each of the Dealers an incumbency certificate
identifying persons authorized to sign Commercial Paper on the Partnership's
behalf and containing the true signatures of each of such persons.
4. Prior to the initial issuance of Commercial Paper, the Partnership
shall have supplied each of the Dealers with an opinion or opinions of counsel
addressing the matters set forth in paragraph 1(a)(i)-(iii), (v) and (vi) above
and such other matters as the Dealers shall reasonably request, such opinion or
opinions to be in form and substance satisfactory to the Dealers.
5. All transactions in Commercial Paper between each of the Dealers and
the Partnership shall be in accordance with the custom and practice in the
commercial paper market. In accordance with such custom and practice, the
purchase of Commercial Paper by the applicable Dealer shall be negotiated
verbally between the applicable Dealer's personnel and the authorized
representative of the Partnership. Such negotiation shall determine the
principal amount of Commercial Paper to be sold, the discount rate or interest
rate applicable thereto, and the maturity thereof. The applicable Dealer's fee
for such sales shall be included in the discount rate with respect to Commercial
Paper issued at a discount, or stated separately as a fee, in the case of
Commercial Paper bearing interest. The applicable Dealer shall confirm each
transaction made with the Partnership in writing in such Dealer's customary
form. Delivery and payment of Commercial Paper shall be effected in accordance
with the Issuing Agreement.
6. The applicable Dealer shall pay for the Notes purchased by such Dealer
in immediately available funds on the business day such Notes, executed in a
manner satisfactory to such Dealer, are delivered to such Dealer in the case of
physical bearer Notes, or in the case of book-entry Notes, on the business day
such Notes are credited to such Dealer's Participant Account at DTC. Payment
shall be made in any manner permitted in the Issuing Agreement. The amount
payable by the applicable Dealer to the Partnership shall be (i) in the case of
discount Notes, the face value thereof less the original issue discount and less
the compensation
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payable to such Dealer and (ii) in the case of interest to follow Notes, the
face value thereof less the compensation payable to such Dealer.
7. From and after the date of this Agreement, the Partnership will supply
to each of the Dealers on a continuing basis three copies of all annual and
quarterly and other reports filed by the Partnership pursuant to Section 13 of
the Exchange Act, and reports mailed by the Partnership to its public
unitholders, plus such other information as the Dealers may reasonably request.
The Partnership understands, however, that the Dealers shall distribute or
otherwise use any informational documents concerning the Partnership, including
the Information Memorandum, only with the prior review and approval of the
Partnership. The Partnership further undertakes to supply copies of such
reports when requested by any Commercial Paper customer of the Dealers, as set
forth in the Information Memorandum. The Partnership further agrees to notify
the Dealers promptly upon the occurrence of any event or other development, the
result of which causes the informational documents and the Partnership's annual
or quarterly and other reports filed pursuant to Section 13 of the Exchange Act,
taken as a whole, to include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
8. (a) The Partnership agrees to indemnify and hold harmless each Dealer
and each person, if any, who controls such Dealer within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act (collectively, the
"Indemnitee"), against any and all losses, claims, damages, liabilities or
expenses, joint or several, to which any Indemnitee may become subject, under
the Act, the Exchange Act, or otherwise, insofar as such losses, claims damages,
liabilities or expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of material fact
contained in the Offering Materials, taken as a whole, or the omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances in which they are made, not
misleading, or any breach of its agreements contained in this Agreement, and the
Partnership further agrees to reimburse each Indemnitee for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, damage, liability, expense or action; provided, however,
that the Partnership will not be liable in any such case to the extent that any
such loss, claim damage, liability or expense arises out of or is based upon
such untrue statement or omission contained in the Offering Materials which
relates to the Dealers (or their respective affiliates) in their capacity as
dealer hereunder.
(b) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph 8(a) is for
any reason held unavailable (otherwise than in accordance with the provision
stated therein), the Partnership shall contribute to the aggregate costs of
satisfying any loss, damage, liability or expense sought to be charged against
or incurred by any Indemnitee in such proportion as is appropriate to reflect
the relative benefits received by the Partnership on the one hand and the
Dealers on the other from the offering of the Notes. For purposes of this
paragraph 8(b), the "relative benefits" received by the Partnership shall be
equal to the aggregate net proceeds received by the Partnership from
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Notes sold pursuant to this Agreement and the "relative benefits" received by
each Dealer shall be equal to the aggregate commissions and fees earned by such
Dealer hereunder.
9. This Agreement may be terminated by the Partnership or either Dealer,
with respect to such Dealer, upon thirty days' notice to the Dealers or the
Partnership, as the case may be. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing accurately reflects our agreement, please sign the
enclosed copy in the space provided below and return it to the undersigned.
The parties hereto have caused the execution of this Agreement on the date
first provided above.
Alliance Capital Management L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:
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Title:
Goldman, Sachs & Co.
By:
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Authorized Signatory
NationsBanc Montgomery Securities, Inc.
By:
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Title:
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