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Exhibit 10.21
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THREE YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF AUGUST 10, 2000
AMONG
THE JOHN NUVEEN COMPANY,
NUVEEN INVESTMENTS
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT,
CITICORP USA, INC., AS SYNDICATION AGENT
THE CHASE MANHATTAN BANK, AS DOCUMENTATION AGENT
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
BANC OF AMERICA, L.L.C.,
AS SOLE LEAD ARRANGER AND SOLE BANK MANAGER
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS....................................................................1
1.1 Certain Defined Terms............................................1
1.2 Other Interpretive Provisions...................................16
1.3 Accounting Principles...........................................17
ARTICLE II
THE CREDITS...................................................................17
2.1 Amounts and Terms of Commitments.................................17
2.2 Loan Accounts....................................................17
2.3 Procedure for Borrowing..........................................17
2.4 Conversion and Continuation Elections............................18
2.5 Voluntary Termination or Reduction of Commitments;...............19
2.6 Optional Prepayments.............................................22
2.7 Repayment........................................................22
2.8 Interest.........................................................22
2.9 Fees.............................................................23
2.10 Computation of Fees and Interest.................................24
2.11 Payments by the Borrowers........................................24
2.12 Payments by the Banks to the Agent...............................25
2.13 Sharing of Payments, Etc. .......................................26
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY........................................26
3.1 Taxes............................................................26
3.2 Illegality.......................................................27
3.3 Increased Costs and Reduction of Return..........................28
3.4 Funding Losses...................................................29
3.5 Inability to Determine Rates.....................................29
3.6 Certificates of Banks............................................30
3.7 Substitution of Banks............................................30
3.8 Survival.........................................................30
ARTICLE IV
CONDITIONS PRECEDENT..........................................................30
4.1 Conditions of Initial Loans......................................30
4.2 Conditions to All Borrowings.....................................31
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Section Page
ARTICLE V
REPRESENTATIONS AND WARRANTIES................................................32
5.1 Corporate Existence; Conduct of Business.........................32
5.2 Authorization and Validity.......................................32
5.3 Compliance with Laws and Contracts...............................33
5.4 Governmental Consents............................................33
5.5 Financial Statements.............................................33
5.6 Material Adverse Change..........................................34
5.7 Taxes............................................................34
5.8 Litigation and Contingent Obligations............................34
5.9 Subsidiaries.....................................................34
5.10 ERISA............................................................34
5.11 Defaults.........................................................35
5.12 Federal Reserve Regulations......................................35
5.13 Investment Company; Public Utility Holding Company...............35
5.14 Certain Fees.....................................................35
5.15 Ownership of Properties..........................................36
5.16 Material Agreements..............................................36
5.17 Insurance........................................................36
5.18 Disclosure.......................................................36
ARTICLE VI
COVENANTS.....................................................................37
6.1 Financial Reporting..............................................37
6.2 Use of Proceeds..................................................38
6.3 Notice of Default................................................39
6.4 Conduct of Business..............................................39
6.5 Taxes............................................................39
6.6 Insurance........................................................39
6.7 Compliance with Laws.............................................39
6.8 Maintenance of Properties........................................39
6.9 Inspection.......................................................40
6.10 Ownership of Subsidiaries........................................40
6.11 Indebtedness.....................................................40
6.12 Merger...........................................................41
6.13 Sale of Assets...................................................41
6.14 Sale of Accounts.................................................41
6.15 Investments and Purchases........................................41
6.16 Contingent Obligations...........................................42
6.17 Liens............................................................42
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Section Page
6.18 Affiliates.......................................................43
6.19 Change in Corporate Structure; Fiscal Year......................43
6.20 Inconsistent Agreements..........................................43
6.21 Financial Covenants..............................................43
6.21.1. Minimum Net Worth ..................................43
6.21.2. Leverage Ratio......................................43
6.22 Subsidiary Borrower Net Capital..................................43
6.23 ERISA Compliance.................................................44
ARTICLE VII
DEFAULTS......................................................................44
7.1 ..................................................................44
7.2 Remedies.........................................................46
7.3 Rights Not Exclusive.............................................46
ARTICLE VIII
GUARANTEE.....................................................................47
8.1 Guarantee........................................................47
8.2 Expenses.........................................................47
8.3 Waivers..........................................................47
8.4 No Impairment....................................................47
8.5 Waiver of Resort.................................................48
8.6 Reinstatement....................................................48
8.7 Payment..........................................................48
8.8 Subrogation, Waivers, etc. ......................................48
8.9 Delay, etc. .....................................................49
ARTICLE IX
THE AGENT ....................................................................49
9.1 Appointment and Authorization....................................49
9.2 Delegation of Duties.............................................49
9.3 Liability of Agent...............................................49
9.4 Reliance by Agent................................................50
9.5 Notice of Default................................................50
9.6 Credit Decision..................................................50
9.7 Indemnification..................................................51
9.8 Agent in Individual Capacity.....................................51
9.9 Successor Agent..................................................52
9.10 Withholding Tax..................................................52
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Section Page
9.11 Documentation Agent; Syndication Agent...........................54
ARTICLE X
MISCELLANEOUS.................................................................54
10.1 Amendments and Waivers..........................................54
10.2 Notices.........................................................55
10.3 No Waiver; Cumulative Remedies..................................55
10.4 Costs and Expenses..............................................56
10.5 Indemnity.......................................................56
10.6 Collateral......................................................57
10.7 Payments Set Aside..............................................57
10.8 Successors and Assigns..........................................57
10.9 Assignments, Participations, etc. ..............................57
10.10 Confidentiality.................................................59
10.11 Set-off.........................................................59
10.12 Automatic Debits of Fees........................................59
10.13 Notification of Addresses, Lending Offices, Etc. ...............60
10.14 Counterparts....................................................60
10.15 Severability....................................................60
10.16 No Third Parties Benefitted.....................................60
10.17 Governing Law and Jurisdiction..................................60
10.18 Waiver of Jury Trial............................................61
10.19 Entire Agreement................................................61
SCHEDULES
Schedule 1.1 Pricing Grid
Schedule 2.1 Commitments
Schedule 5.9 Subsidiaries
Schedule 5.10 ERISA
Schedule 10.2 Lending Offices; Addresses for Notices
Schedule 10.6 Collateral
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EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Legal Opinion of Borrowers' Outside Counsel
Exhibit D-2 Form of Legal Opinion of Borrowers' General Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Promissory Note
Exhibit G Form of Accession Agreement
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THREE YEAR REVOLVING CREDIT AGREEMENT
This THREE YEAR REVOLVING CREDIT AGREEMENT is entered into as of August 10,
2000, among The John Nuveen Company, a Delaware corporation, Nuveen Investments,
a Delaware corporation, the several financial institutions from time to time
party to this Agreement (collectively, the "Banks"; individually, a "Bank"),
Citicorp USA, Inc., as syndication agent, The Chase Manhattan Bank, as
documentation agent and Bank of America, N.A., as administrative agent for the
Banks.
WHEREAS, the Banks have agreed to make available to the Borrowers a
revolving credit facility upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the following meanings:
"Accession Agreement" has the meaning specified in Section 2.5(b).
"Advisers Act" means the Investment Advisers Act of 1940, as amended.
"Affected Bank" has the meaning specified in Section 3.7.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities, by
contract, or otherwise.
"Agent" means Bank of America in its capacity as administrative agent
for the Banks hereunder, and any successor agent arising under Section 9.9.
"Agent-Related Persons" means Bank of America and any successor agent
arising under Section 9.9, together with their respective Affiliates
(including, in the case of Bank of America, the Arranger), and the
officers, directors, employees, agents and attorneys-in- fact of such
Persons and Affiliates.
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"Agent's Payment Office" means the address for payments set forth on
the signature page hereto in relation to the Agent, or such other address
as the Agent may from time to time specify.
"Agreement" means this Credit Agreement.
"Annual Operating Cash Flow" means, as at any fiscal quarter end,
EBITDA for the four consecutive fiscal quarters then ended.
"Applicable Facility Fee Rate" means the rate set forth on the Pricing
Grid for the applicable Pricing Level.
"Applicable Margin" means, with respect to Offshore Rate Loans and
Federal Funds Rate Loans, the rate set forth opposite "Applicable Margin"
on the Pricing Grid for the applicable Pricing Level.
"Applicable Utilization Fee Rate" means the rate set forth on the
Pricing Grid for the applicable Pricing Level.
"Arranger" means Banc of America, L.L.C., a Delaware limited liability
company.
"Assignee" has the meaning specified in Section 10.9(a).
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel and, without duplication, the allocated
cost of internal legal services and all disbursements of internal counsel.
"Bank" has the meaning specified in the introductory clause hereto.
"Bank of America" means Bank of America, N.A., a national banking
association.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. SECTION 101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America, as
its "prime rate." (The "prime rate" is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or below such
announced rate.) Any change in the "prime rate" announced by Bank of
America shall take effect at the opening of business on the day specified
in the public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
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"Borrower" means the Parent or the Subsidiary Borrower.
"Borrowing" means a borrowing hereunder consisting of Loans of the
same Type made to a Borrower on the same day by the Banks under Article II,
and, in the case of Offshore Rate Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under
Section 2.3.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina and Chicago,
Illinois are authorized or required by law to close and, if the applicable
Business Day relates to any Offshore Rate Loan, means such a day on which
dealings are carried on in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
"CFTC" means the Commodities Future Trading Commission and any
successor entity.
"Change of Control" means (a) the acquisition by any Person, or two or
more Persons acting in concert, including without limitation any
acquisition effected by means of any transaction contemplated by Section
6.12, of beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Exchange Act of 1934) of 30%
or more of the outstanding shares of voting stock of the Parent, or (b) The
St. Paul Companies, Inc., or a successor acceptable to each of the Banks,
shall cease to own beneficially and of record, free and clear of all Liens,
other encumbrances, or voting agreements, restrictions or trusts of any
kind at least 50.1% of the outstanding shares of capital stock of the
Parent on a fully diluted basis and shares representing the right to elect
a majority of the directors of the Parent, (c) during any period of 25
consecutive calendar months, commencing on the date of this Agreement, the
ceasing of those individuals (the "Continuing Directors") who (i) were
directors of the Parent on the first day of each such period or (ii)
subsequently became directors of the Parent and whose initial election or
initial nomination for election subsequent to that date was approved by a
majority of the Continuing Directors then on the board of directors of the
Parent, to constitute a majority of the board of directors of the Parent,
or (d) the Parent shall cease to own, directly or indirectly, free and
clear of all Liens or other encumbrances, at least 99% of the outstanding
shares of capital stock of the Subsidiary Borrower on a fully diluted
basis.
"Closing Date" means the date on which all conditions precedent set
forth in Section 4.1 are satisfied or waived by all Banks (or, in the case
of Section 4.1(e), waived by the Person entitled to receive such payment).
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"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Commitment", as to each Bank, has the meaning specified in Section
2.1.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease, dividend,
letter of credit or other obligation (the "primary obligations") of another
Person (the "primary obligor"), including any obligation of that Person (i)
to purchase, repurchase or otherwise acquire such primary obligations or
any security therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof
(each, a "Guaranty Obligation"); (b) with respect to any Surety Instrument
issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase
any materials, supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related document or
obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether
delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered, or (d) in
respect of any Rate Hedging Obligations. The amount of any Contingent
Obligation shall, in the case of Guaranty Obligations, be deemed equal to
the stated or determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof, and in the case of other Contingent Obligations, shall be equal to
the maximum reasonably anticipated liability in respect thereof.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it or any of its
property is bound.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Parent or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
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"Conversion/Continuation Date" means any date on which, under Section
2.4, a Borrower (a) converts Loans of one Type to another Type, or (b)
continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Distribution Receivables" means advanced sales commissions reflected
on the consolidated balance sheet of the Parent and its Subsidiaries in
accordance with GAAP representing fees, commissions or other amounts
payable by registered investment companies sponsored or advised by the
Subsidiary Borrower or any Affiliate thereof relating to the distribution
of such investment companies' shares.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"EBITDA" means, for any applicable computation period, the Parent's
and Subsidiaries' Net Income on a consolidated basis from continuing
operations, plus (a) income and franchise taxes paid or accrued during such
period, (b) interest expenses accrued during such period, and (c)
amortization and depreciation and other non-cash charges deducted in
determining Net Income for such period, all determined and computed in
accordance with GAAP.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (ii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the United States; (iii) a Person
that is primarily engaged in the business of commercial banking and that is
(A) a Subsidiary of a Bank, (B) a Subsidiary of a Person of which a Bank is
a Subsidiary, or (C) a Person of which a Bank is a Subsidiary; (iv) another
Bank; (v) any other entity which is an "accredited investor" (as defined in
Regulation D under the Securities Act of 1933, as amended) which extends
credit or buys loans as one of its businesses, including but not limited
to, insurance companies, mutual funds and lease financing companies; or
(vi) other lenders or institutional investors consented to in writing in
advance by Agent and the Parent.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
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"Event of Default" means any of the events or circumstances specified
in Section 7.1.
"Exchange Act" means the Securities and Exchange Act of 1934, and
regulations promulgated thereunder.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such rate
is not so published on any such preceding Business Day, the rate for such
day will be the arithmetic mean as determined by the Agent of the rates for
the last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Agent.
"Federal Funds Rate Loan" means a Loan that bears interest based on
the Federal Funds Rate.
"Fee Letter" has the meaning specified in Section 2.9(a).
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to
the circumstances as of the date hereof.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary
or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guaranteed Indebtedness" has the meaning specified in Section 8.1.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables entered into in the ordinary course
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of business on ordinary terms); (c) all non-contingent reimbursement or
payment obligations with respect to Surety Instruments; (d) all obligations
evidenced by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
property, assets or businesses; (e) all indebtedness created or arising
under any conditional sale or other title retention agreement, or incurred
as financing, in either case with respect to property acquired by the
Person (even though the rights and remedies of the seller or bank under
such agreement in the event of default are limited to repossession or sale
of such property); (f) all obligations with respect to capital leases; (g)
all Rate Hedging Obligations; (h) all indebtedness referred to in clauses
(a) through (g) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien upon or in property (including accounts and contracts rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness; and (i) all Guaranty
Obligations in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (g) above.
"Indemnified Party" has the meaning specified in Section 10.5.
"Insolvency Proceeding" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshaling of assets for creditors, or
other, similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; undertaken under U.S. Federal, state
or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Offshore Rate Loan, the last
day of each Interest Period applicable to such Loan and, as to any Base
Rate Loan or Federal Funds Rate Loan, the last Business Day of each
calendar quarter and each date such Loan is converted into another Type of
Loan, provided, however, that if any Interest Period for an Offshore Rate
Loan exceeds three months, the date that falls three months after the
beginning of such Interest Period.
"Interest Period" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two, three
or six months thereafter as selected by the applicable Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, that Interest Period shall be extended to the
following Business Day, unless the result of such extension would be
to carry such Interest Period into another
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calendar month, in which event such Interest Period shall end on the
preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend beyond the
Revolving Termination Date.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in
the ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in
the trade), deposit account or contribution of capital by such Person to
any other Person or any investment in, or purchase or other acquisition of,
the stock, partnership interests, notes, debentures or other securities of
any other Person made by such Person.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Lending Office" means, as to any Bank, the office or offices of such
Bank specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 10.2, or such
other office or offices as such Bank may from time to time notify the
Parent and the Agent.
"Leverage Ratio" means, as determined as of the end of any fiscal
quarter, the ratio of (a) Net Debt at such time to (b) Annual Operating
Cash Flow.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance or
lien (statutory or other) in respect of any property (including those
created by, arising under or evidenced by any conditional sale or other
title retention agreement, the interest of a lessor under a capital lease,
any financing lease having substantially the same economic effect as any of
the foregoing, or the filing of any financing statement naming the owner of
the asset to which such lien relates as debtor, under the Uniform
Commercial Code or any comparable law) and any contingent or other
agreement to provide any of the foregoing, but not including the interest
of a lessor under an operating lease.
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"Loan" means an extension of credit by a Bank to a Borrower under
Article II, and may be a Base Rate Loan, Federal Funds Rate Loan or an
Offshore Rate Loan (each, a "Type" of Loan).
"Loan Documents" means this Agreement, any Notes, the Fee Letter and
all other documents delivered to the Agent or any Bank in connection
herewith.
"Majority Banks" means at any time Banks then holding in excess of 50%
of the then aggregate unpaid principal amount of the Loans, or, if no such
principal amount is then outstanding, Banks then having in excess of 50% of
the Commitments.
"Margin Stock" has the meaning assigned to that term under Regulation
U.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties or
condition (financial or otherwise) of the Parent or the Parent and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of
the Parent to perform under any Loan Document and to avoid any Event of
Default; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Parent of any Loan Document.
"Materially Associated Persons" any associated person of a broker,
dealer, government securities broker, government securities dealer,
municipal securities dealer, or derivatives dealer (other than a natural
person) whose business activities are reasonably likely to have a material
impact on the financial or operational condition of any such broker,
dealer, government securities broker, government securities dealer,
municipal securities dealer, or derivatives dealer, including on its net
capital, its liquidity, or its ability to conduct or finance its
operations.
"MSRB" means the Municipal Securities Rulemaking Board or any
successor entity.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Parent or any
member of the Controlled Group is a party to which more than one employer
is obligated to make contributions.
"NASD" means the NASD Regulation, Inc.
"Net Debt" means the aggregate outstanding principal balance of all
Indebtedness of the Parent and its Subsidiaries on a consolidated basis
required to be reflected on a balance sheet prepared in accordance with
GAAP.
"Net Income" means, for any computation period, with respect to the
Parent on a consolidated basis with its Subsidiaries (other than any
Subsidiary which is restricted from declaring or paying dividends or
otherwise advancing funds to its parent whether by contract
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or otherwise), cumulative net income earned during such period as
determined in accordance with GAAP.
"Net Worth" means at any date the consolidated common stockholders
equity of the Parent and its consolidated Subsidiaries and redeemable
preferred stock of the Parent determined in accordance with GAAP.
"Note" means a promissory note executed by a Borrower in favor of a
Bank pursuant to Section 2.2(b), in substantially the form of Exhibit F.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice in substantially
the form of Exhibit B.
"Nuveen Advisory" means Nuveen Advisory Corp., a Delaware corporation.
"Nuveen Asset Management" means Nuveen Asset Management Inc., a
Delaware corporation.
"Nuveen Institutional" means Nuveen Institutional Advisory Corp., a
Delaware corporation.
"NYSE" means the New York Stock Exchange, Inc.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by either
Borrower to any Bank, the Agent, or any Indemnified Party, whether direct
or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising.
"Offshore Rate" means for any Interest Period with respect to any
Offshore Rate Loan, a rate per annum determined by Agent pursuant to the
following formula:
Offshore Rate = Offshore Base Rate
-------------------------------------
1.00 - Eurodollar Re serve Percentage
Where,
"Offshore Base Rate" means, for such Interest Period:
(a) the rate per annum (carried out to the fifth decimal place)
equal to the rate determined by the Agent to be the offered rate that
appears on the page of the Telerate Screen that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest
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Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, or
(b) in the event the rate referenced in the preceding subsection
(a) does not appear on such page or service or such page or service
shall cease to be available, the rate per annum (carried out to the
fifth decimal place) equal to the rate determined by Agent to be the
offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, or
(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per annum
determined by the Agent as the rate of interest at which deposits in
Dollars (for delivery on the first day of such Interest Period) in
same day funds in the approximate amount of the applicable Offshore
Rate Loan and with a term equivalent to such Interest Period would be
offered by its London Branch to major banks in the offshore Dollar
market at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, rounded upward to
the next 1/100th of 1%) in effect on such day, whether or not applicable to
any Bank, under regulations issued from time to time by the Board of
Governors of the Federal Reserve System for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities").
The determination of the Eurocurrency Reserve Percentage and the
Offshore Base Rate by the Agent shall be conclusive in the absence of
manifest error.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based on the
Offshore Rate.
"Other Credit Agreement" means the 364-day Revolving Credit Agreement
dated the date hereof among the Borrower, Bank of America, as
Administrative Agent, Citicorp USA, Inc., as Syndication Agent and The
Chase Manhattan Bank, as Documentation Agent.
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"Other Taxes" means any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other
Loan Documents.
"Parent" means The John Nuveen Company, a Delaware company.
"Participant" has the meaning specified in Section 10.9(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Plan" means an employee pension benefit plan, as defined in Section
3(2) of ERISA, as to which the Parent or any member of the Controlled Group
may have any liability.
"Pricing Grid" means the Pricing Grid set forth on Schedule 1.1.
"Pricing Level" means the Pricing Level on the Pricing Grid which is
applicable from time to time in accordance with Section 2.8(c).
"Pro Rata Share" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at
such time of such Bank's Commitment divided by the combined Commitments of
all Banks.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
"Purchase" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which
the Parent or any of its Subsidiaries (a) acquires any ongoing business or
all or substantially all of the assets of any Person or division or line of
business thereof, whether through purchase of assets, merger or otherwise,
or (b) directly or indirectly acquires (in one transaction or as the most
recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary
voting power for the election of directors (other than securities having
such power only by reason of the happening of a contingency) or a majority
(by percentage or voting power) of the outstanding partnership interests of
a partnership.
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"Rate Hedging Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under (a) any and
all agreements, devices or arrangements designed to protect at least one of
the parties thereto from the fluctuations of interest rates, exchange rates
or forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward rate currency or
interest rate options, puts and warrants, and (b) any and all
cancellations, buybacks, reversals, terminations or assignments of any of
the foregoing.
"Regulation D" means Regulation D of the FRB as from time to time in
effect and any successor thereto or other regulation or official
interpretation of the FRB relating to reserve requirements applicable to
depositary institutions.
"Regulation T" means Regulation T of the FRB as from time to time in
effect and shall include any successor or other regulation or official
interpretation of the FRB relating to the extension of credit by securities
brokers and dealers for the purpose of purchasing or carrying margin stocks
applicable to such Persons.
"Regulation U" means Regulation U of the FRB from time to time in
effect and any successor or other regulation or official interpretation of
the FRB relating to the extension of credit by banks for the purpose of
purchasing or carrying margin stocks applicable to such Person.
"Regulation X" means Regulation X of the FRB as from time to time in
effect and shall include any successor or other regulation or official
interpretation of FRB relating to the extension of credit by the specified
lenders for the purpose of purchasing or carrying margin stocks applicable
to such Persons.
"Replacement Bank" has the meaning specified in Section 3.7.
Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a
Plan, excluding, however, such events as to which the PBGC has by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event; provided, that a
failure to meet the minimum funding standard of Section 412 of the Code and
of Section 302 of ERISA shall be a Reportable Event regardless of the
issuance of any such waiver of the notice requirement in accordance with
either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of
a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
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"Responsible Officer" means the chief executive officer or the
president of the Parent, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer or the treasurer of the Parent, or
any other officer having substantially the same authority and
responsibility.
"Revolving Termination Date" means the earlier to occur of:
(a) August 8, 2003; and
(b) the date on which the Commitments terminate in accordance
with the provisions of this Agreement.
"Rittenhouse" means Rittenhouse Financial Services, Inc., a Delaware
corporation.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Seed Money" means Investments (i) constituting the initial investment
in any registered investment company sponsored by the Subsidiary Borrower
or any Affiliate thereof made by Nuveen Advisory, Nuveen Institutional or
any Affiliate thereof pursuant to Section 14(a) (or any successor
provision) of the Investment Company Act, without regard to any minimum
investment requirements under said Section 14(a) or (ii) constituting a
portfolio of securities maintained on the books of a Borrower or any
Affiliate thereof and invested in accordance with a particular method or
investment style in order to develop a performance record and to be
subsequently offered to advisory clients as an investment option.
"Short-term Indebtedness means Indebtedness with a term of no more
than ten Business Days.
"Single Employer Plan" means a Plan subject to Title IV of ERISA
maintained by the Parent or any member of the Controlled Group for
employees of the Parent or any member of the Controlled Group, other than a
Multiemployer Plan.
"SIPC" has the meaning specified in Section 7.1(j).
"Subsidiary" of a Person means any corporation, limited liability
company, association, partnership, joint venture or other business entity
of which more than 50% of the voting stock or other equity interests (in
the case of Persons other than corporations), is owned or controlled
directly or indirectly by the Person, or one or more of the Subsidiaries of
the Person, or a combination thereof. Unless the context otherwise clearly
requires, references herein to a "Subsidiary" refer to a Subsidiary of the
Parent.
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"Subsidiary Borrower" means Nuveen Investments, a Delaware
corporation.
"Substantial Portion" means, with respect to the Property of the
Parent and its Subsidiaries, Property which (a) represents more than 10% of
the consolidated assets of the Parent and its Subsidiaries, as would be
shown in the consolidated financial statements of the Parent and its
Subsidiaries as at the end of the quarter next preceding the date on which
such determination is made, or (b) is responsible for more than 10% of the
consolidated net sales or 20% of the Net Income of the Parent and its
Subsidiaries for the 12-month period ending as of the end of the quarter
next preceding the date of determination.
"Surety Instruments" means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"Taxes" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Agent, such taxes
(including income taxes or franchise taxes) as are imposed on or measured
by the Agent's or such Bank's net income by the jurisdiction (or any
political subdivision thereof) under the laws of which such Bank or the
Agent, as the case may be, is organized or maintains a lending office.
"Termination Event" means, with respect to a Plan which is subject to
Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Parent
or any other member of the Controlled Group from such Plan during a plan
year in which the Parent or any other member of the Controlled Group was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or was
deemed such under Section 4068(f) of ERISA, (c) the termination of such
Plan, the filing of a notice of intent to terminate such Plan or the
treatment of an amendment of such Plan as a termination under Section 4041
of ERISA, (d) the institution by the PBGC of proceedings to terminate such
Plan or (e) any event or condition which might constitute grounds under
Section 4042 of ERISA for the termination of, or appointment of a trustee
to administer, such Plan.
"Type" has the meaning specified in the definition of "Loan."
"UIT" means a unit investment trust consisting of a portfolio of
municipal bonds or taxable securities.
"Unfunded Liability" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under a Single Employer
Plan exceeds the fair market value of assets allocable to such benefits,
all determined as of the then most recent valuation date for such Plans
using PBGC actuarial assumptions for single employer plan terminations.
"United States" and "U.S." each means the United States of America.
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"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of
each class having ordinary voting power, and 100% of the capital stock of
every other class, in each case, at the time as of which any determination
is being made, is owned, beneficially and of record, by the Parent, or by
one or more of the other Wholly-Owned Subsidiaries, or both.
1.2 Other Interpretive Provisions. (a) The meanings of defined terms
are equally applicable to the singular and plural forms of the defined
terms.
(b) The words "hereof", "herein", "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision
of this Agreement; and subsection, Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced, delivered in connection with the
Agreement.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and
other modifications thereto, but only to the extent such amendments
and other modifications are not prohibited by the terms of any Loan
Document, and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation
of this Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are
cumulative and shall each be performed in accordance with their terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the
Borrowers and the other parties, and are the work products of all
parties. Accordingly, they shall not be construed against the Banks or
the Agent merely because of the Agent's or Banks' involvement in their
preparation.
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1.3 Accounting Principles. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement
shall be made, in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer
to such fiscal periods of the Parent.
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments. Each Bank severally agrees, on
the terms and conditions set forth herein, to make loans to each of the
Borrowers from time to time on any Business Day during the period from the
Closing Date to the Revolving Termination Date, in an aggregate amount for
both Borrowers not to exceed at any time outstanding the amount set forth
on Schedule 2.1 (such amount as the same may be reduced or increased under
Section 2.5 or as a result of one or more assignments under Section 10.9,
the Bank's "Commitment"); provided, however, that, after giving effect to
any Borrowing, the aggregate principal amount of all outstanding Loans
shall not at any time exceed the combined Commitments. Within the limits of
each Bank's Commitment, and subject to the other terms and conditions
hereof, each Borrower may borrow under this Section 2.1, prepay under
Section 2.6 and reborrow under this Section 2.1.
2.2 Loan Accounts. (a) The Loans made by each Bank shall be evidenced
by one or more loan accounts or records maintained by such Bank in the
ordinary course of business. The loan accounts or records maintained by the
Agent and each Bank shall be presumptively correct absent manifest error of
the amount of the Loans made by the Banks to each Borrower and the interest
and payments thereon. Any failure so to record or any error in doing so
shall not, however, limit or otherwise affect the obligation of such
Borrower hereunder to pay any amount owing with respect to its Loans.
(b) Upon the request of any Bank made through the Agent, the
Loans made by such Bank may be evidenced by one or more Notes, instead
of loan accounts. Each such Bank shall endorse on the schedules
annexed to its Note(s) the date, amount and maturity of each Loan made
by it and the amount of each payment of principal made by the
applicable Borrower with respect thereto. Each such Bank is
irrevocably authorized by each Borrower to endorse its Note(s) and
each Bank's record shall be presumptively correct absent manifest
error; provided, however, that the failure of a Bank to make, or an
error in making, a notation thereon with respect to any Loan shall not
limit or otherwise affect the obligations of such Borrower hereunder
or under any such Note to such Bank.
2.3 Procedure for Borrowing. (a) Each Borrowing shall be made upon the
irrevocable written notice of a Borrower delivered to the Agent in the form
of a Notice of Borrowing (which notice must be received by the Agent prior
to 11:00 a.m. (Charlotte time) (i) three Business Days
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prior to the requested Borrowing Date, in the case of Offshore Rate Loans; and
(ii) on the requested Borrowing Date, in the case of Base Rate Loans and Federal
Funds Rate Loans, specifying:
(A) the applicable Borrower;
(B) the amount of the Borrowing, which shall be in an
aggregate minimum amount of $5,000,000 or any multiple of
$1,000,000 in excess thereof;
(C) the requested Borrowing Date, which shall be a
Business Day;
(D) the Type of Loans comprising the Borrowing; and
(E) the duration of the Interest Period applicable to
such Loans included in such notice. If the Notice of
Borrowing fails to specify the duration of the Interest
Period for any Borrowing comprised of Offshore Rate Loans,
such Interest Period shall be three months.
(b) The Agent will promptly notify each Bank of its receipt of any
Notice of Borrowing and of the amount of such Bank's Pro Rata Share of that
Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each
Borrowing available to the Agent for the account of the applicable Borrower
at the Agent's Payment Office by 1:00 p.m. (Charlotte time) on the
Borrowing Date requested by the applicable Borrower in funds immediately
available to the Agent. The proceeds of all such Loans will then be made
available to the applicable Borrower by the Agent by wire transfer in
accordance with written instructions provided to the Agent by the
applicable Borrower of like funds as received by the Agent.
(d) After giving effect to any Borrowing, there may not be more than
five different Interest Periods in effect.
2.4 Conversion and Continuation Elections. (a) Each Borrower may, upon
irrevocable written notice to the Agent in accordance with Section 2.4(b):
(i) elect, as of any Business Day, in the case of Base Rate Loans
or Federal Funds Rate Loans, or as of the last day of the applicable
Interest Period, in the case of Offshore Rate Loans, to convert any
such Loans (or any part thereof in an amount not less than $5,000,000,
or that is in an integral multiple of $1,000,000 in excess thereof)
into Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest Period,
to continue any Loans having Interest Periods expiring on such day (or
any part thereof in an amount not less than $5,000,000, or that is in
an integral multiple of $1,000,000 in excess thereof);
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provided, that if at any time the aggregate amount of Offshore Rate Loans
in respect of any Borrowing is reduced, by payment, prepayment, or
conversion of part thereof to be less than $5,000,000, such Offshore Rate
Loans shall automatically convert into Base Rate Loans, and on and after
such date the right of the applicable Borrower to continue such Loans as,
and convert such Loans into, Offshore Rate Loans shall terminate.
(b) The applicable Borrower shall deliver a Notice of Conversion/
Continuation to be received by the Agent not later than 11:00 a.m.
(Charlotte time) at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or
continued as Offshore Rate Loans; and (ii) on the
Conversion/Continuation Date, if the Loans are to be converted into
Base Rate Loans or Federal Funds Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or
renewed;
(C) the Type of Loans resulting from the proposed conversion
or continuation; and
(D) in the case of conversions into Offshore Rate Loans, the
duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, a Borrower has failed to select timely a new
Interest Period to be applicable to such Offshore Rate Loans, or if
any Default or Event of Default then exists, the applicable Borrower
shall be deemed to have elected to convert such Offshore Rate Loans
into Base Rate Loans effective as of the expiration date of such
Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided
by the applicable Borrower, the Agent will promptly notify each Bank
of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the
notice was given held by each Bank.
(e) Unless the Majority Banks otherwise agree, during the
existence of a Default or Event of Default, the Borrowers may not
elect to have Loans converted into or continued as an Offshore Rate
Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than five different Interest Periods in
effect.
2.5 Voluntary Termination or Reduction of Commitments; Increase of
Commitments.
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(a) Any Borrower may, upon not less than three (3) Business Days'
prior notice to the Agent, terminate the Commitments, or permanently
reduce the Commitments by an aggregate minimum amount of $5,000,000 or
any multiple of $1,000,000 in excess thereof; unless, after giving
effect thereto and to any prepayments of Loans made on the effective
date thereof, the then-outstanding principal amount of the Loans would
exceed the amount of the combined Commitments then in effect. Once
reduced in accordance with this Section, the Commitments may not be
increased. Any reduction of the Commitments shall be applied to each
Bank according to its Pro Rata Share. All accrued commitment fees to,
but not including the effective date of any reduction or termination
of Commitments, shall be paid on the effective date of such reduction
or termination.
(b) Increases in Commitments.
(i) If no Default or Event of Default has occurred and is
continuing, any Borrower may, at any time prior to the Revolving
Termination Date, request an increase in the aggregate
Commitments, by giving written notice to the Agent and each Bank
(each such notice an "Increase Request"). Concurrently with
delivering an Increase Request, such Borrower may seek additional
commitments from other financial institutions ("New Bank(s)"). An
Increase Request may request an increase in the aggregate
Commitments of at least $5,000,000 but not more than $50,000,000;
provided, that in no event shall the aggregate Commitments of the
Banks (including New Banks) hereunder exceed $200,000,000 at any
time. Each Bank may, in its sole and absolute discretion, commit
to increase its Commitment by all or a part of the increase
requested in the Increase Request by delivering to such Borrower
and the Agent a commitment valid for a period of 30 days
("Commitment Increase Notice") to such effect, which Commitment
Increase Notice shall refer to this Section 2.5(b)(i) and which
shall be given no later than 10 Business Days after the date of
the Increase Request (the period between the date of the Increase
Request and the 10 Business Day deadline for response being
referred to as the "Consent Period"). The existing Commitment of
any Bank shall not be increased in connection with an Increase
Request if such Bank (x) by notice ("Decline Notice") declines to
increase its Commitment during the Consent Period or (y) fails to
respond to the Borrower and the Agent within the Consent Period
(each such Bank giving a Decline Notice or failing to respond on
or before the expiration of the Consent Period being called a
"Declining Bank" and each other Bank being called an "Increasing
Bank").
(ii) Upon expiry of the Consent Period (or sooner if all
existing Banks and New Banks respond sooner), if the commitments
of the Increasing Banks specified in their respective Commitment
Increase Notices and the New Bank(s) in their commitment letters
equal or exceed the Increase Request, the Agent shall allocate
such commitments up to the amount specified in the Increase
Request to the Increasing Banks and New Bank(s) based on the
ratio of each Increasing Bank's
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commitment specified in its Commitment Increase Notice (or New
Bank in its commitment letter) to the aggregate of all
commitments of the Increasing Banks specified in the Commitment
Increase Notices and New Bank(s) in their commitment letters.
(iii) Upon expiry of the Consent Period, if the commitments
of the Increasing Banks specified in their respective Commitment
Increase Notices and the New Bank(s) in their commitment letters
are less than the Increase Request, the Borrowers may agree to
accept such commitments from the Increasing Banks and New
Bank(s). Upon expiry of the Consent Period (or sooner if all
existing Banks and New Banks respond sooner), the Borrowers may
add New Bank(s) with commitments up to the amount specified in
their commitment letters; provided, that (A) no Default shall
have occurred and be continuing, (B) the aggregate amount of
Commitments plus increases in Increasing Bank existing
Commitments and New Bank commitments does not exceed
$200,000,000, (C) any such New Bank assumes all the rights and
obligations of a "Bank" hereunder pursuant to accession
documentation as the Agent shall specify and described below and
(D) such New Bank is reasonably satisfactory to the Agent. If the
Borrowers do accept such commitments, the Agent shall allocate
such commitments to each of the Increasing Banks and New Bank(s)
based on the ratio of its commitment specified in its Commitment
Increase Notice or commitment letter to the aggregate of all
commitments of the Increasing Banks and New Bank(s) specified in
their Commitment Increase Notices and commitment letters.
(iv) Upon allocation of the increased commitments to the
Increasing Banks and/or New Bank(s), the Borrowers shall deliver
such documentation as the Agent may reasonably require to
evidence the Borrowers' authority to incur the increased
obligations hereunder, and if requested by the Increasing Banks
and/or New Banks, replacement Notes to the Increasing Banks
and/or new notes to the New Bank(s) reflecting the Commitment of
each Increasing Bank and New Bank. Such new and replacement
notes, if any, shall be deemed to constitute a "Note" or "Notes"
hereunder for all purposes and such new and increased commitments
shall constitute a "Commitment" or "Commitments" hereunder for
all purposes. The Agent shall promptly provide each of the Banks
a revised Schedule 1.1 reflecting the Commitments of the Banks.
(v) Any New Bank may become a "Bank" under this Agreement by
executing and delivering to the Borrowers and the Agent an
Accession Agreement (an "Accession Agreement") in substantially
the form of Exhibit G hereto and such related documentation as
shall be reasonably satisfactory in form and substance to the
Agent, pursuant to which such New Bank shall assume the rights,
privileges, duties and obligations of a "Bank" hereunder. Upon
the effectiveness of any such Accession Agreement and related
documentation, the New Bank shall become a "Bank" for all
purposes of this Agreement having the Commitments specified in
such
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Accession Agreement. The Agent shall promptly provide a copy of
each Accession Agreement to each of the Banks.
(vi) Upon the effectiveness of any increase pursuant to this
Section 2.5(b) of the aggregate Commitments and any resulting
adjustment in a Pro Rata Share, the Banks and the New Banks will
purchase from each other and sell to each other outstanding Loans
sufficient to cause the outstanding Loans of each Bank and New
Bank to equal its Pro Rata Share (as so adjusted) of the
aggregate outstanding Loans. If any Bank shall suffer a loss or
incur an expense as a result of the effectiveness of such
purchase or sale being during an Interest Period, the applicable
Borrower shall reimburse such Bank the amount of such loss or
expense. Each such Bank shall furnish such Borrower with a
certificate setting forth the basis for determining the amount to
be paid to it hereunder.
2.6 Optional Prepayments. Subject to Section 3.4, each Borrower may,
at any time or from time to time, upon not less than one Business Day's
irrevocable notice to the Agent, ratably prepay Loans in whole or in part,
in minimum amounts of $5,000,000 or any multiple of $1,000,000 in excess
thereof. Such notice of prepayment shall specify the date and amount of
such prepayment and the Type(s) of Loans to be prepaid. The Agent will
promptly notify each Bank of its receipt of any such notice, and of such
Bank's Pro Rata Share of such prepayment. If such notice is given by a
Borrower, such Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein, together with accrued interest to each such date on the amount
prepaid and any amounts required pursuant to Section 3.4.
2.7 Repayment. Each Borrower shall repay to the Banks on the Revolving
Termination Date the aggregate principal amount of its Loans outstanding on
such date.
2.8 Interest. (a) Each Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per
annum equal to the Offshore Rate, the Federal Funds Rate or the Base Rate,
as the case may be (and subject to each Borrower's right to convert to
other Types of Loans under Section 2.4), plus, in the case of Offshore Rate
Loans and Federal Funds Rate Loans, the Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Loans under Section 2.6 for the portion of the Loans so
prepaid and upon payment (including prepayment) in full thereof and,
during the existence of any Event of Default, interest shall be paid
on demand of the Agent at the request or with the consent of the
Majority Banks.
(c) Any change in the Applicable Margin or Applicable Facility
Fee Rate resulting from a change in the Pricing Level in accordance
with the Pricing Grid shall be effective the tenth day after the
earlier of (i) the delivery of the certificate required pursuant to
Section 6.1(d) or (ii) the date by which the delivery of such
certificate is required under Section 6.1(d), based on the Leverage
Ratio of the Parent and its Subsidiaries on a
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consolidated basis as of the last day of the applicable fiscal quarter
or fiscal year; it being understood that if the Parent fails to
deliver the financial statements or certificate required by Section
6.1 by the tenth day after the required delivery date for any fiscal
quarter or fiscal year, commencing on such tenth day, until the date
such financial statements or certificate are delivered, the Pricing
Level in effect shall be in Pricing Level III. Notwithstanding the
foregoing, the Pricing Level in effect on the Closing Date shall be
Pricing Level I.
(d) Notwithstanding subsection (a) of this Section, while any
Event of Default exists or after acceleration, the defaulting Borrower
shall pay interest (after as well as before entry of judgment thereon
to the extent permitted by law) on the principal amount of all its
outstanding Loans, at a rate per annum which is determined by adding
2% per annum to the rate of interest then in effect for such Loans;
provided, however, that, on and after the expiration of any Interest
Period applicable to any Offshore Rate Loan outstanding on the date of
occurrence of such Event of Default or acceleration, the principal
amount of such Loan shall, during the continuation of such Event of
Default or after acceleration, bear interest at a rate per annum equal
to the Base Rate plus 2%.
(e) Anything herein to the contrary notwithstanding, the
obligations of the Borrowers to any Bank hereunder shall be subject to
the limitation that payments of interest shall not be required for any
period for which interest is computed hereunder, to the extent (but
only to the extent) that contracting for or receiving such payment by
such Bank would be contrary to the provisions of any law applicable to
such Bank limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Bank, and in such event
the Borrowers shall pay such Bank interest at the highest rate
permitted by applicable law.
2.9 Fees. (a) Arrangement, Agency Fees. The Borrowers shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall
pay an agency fee to the Agent for the Agent's own account, as required by
the letter agreement ("Fee Letter") among the Borrowers, the Arranger and
Agent dated July 12, 2000.
(b) Facility Fees. The Borrowers jointly and severally agree to
pay to the Agent for the account of each Bank a facility fee on the
average daily amount of such Bank's Commitment, computed on a
quarterly basis in arrears on the last Business Day of each calendar
quarter for that quarter as calculated by the Agent, equal to the
Applicable Facility Fee Rate per annum. Such facility fee shall accrue
from the date hereof to the Revolving Termination Date and shall be
due and payable quarterly in arrears on the last Business Day of each
calendar quarter commencing on September 30, 2000 through the
Revolving Termination Date (or, if later, the date of repayment of all
the Loans), with the final payment to be made on the Revolving
Termination Date (or, if later, the date of repayment of all the
Loans); provided that, in connection with any reduction or termination
of Commitments under Section 2.5, the accrued facility fee calculated
for the period ending on such date shall also be paid on the date of
such reduction or termination, with the following quarterly payment
being calculated on the basis of the period from such reduction or
termination date
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to such quarterly payment date. The facility fees provided in this
subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more
conditions in Article IV are not met. It is acknowledged and agreed
that if the Loans and facility fees are not paid on the Revolving
Termination Date, facility fees after the Revolving Termination Date
shall accrue on the amount of outstanding Loans (as opposed to
Commitments) and shall be paid concurrently with the repayment of the
Loans.
(c) Utilization Fees. The Borrowers jointly and severally agree
to pay to the Agent for the account of each Bank a utilization fee on
the average daily amount of such Bank's Loans, computed on a quarterly
basis in arrears on the last Business Day of each calendar quarter for
that quarter as calculated by the Agent for each day on which the
outstanding principal amount of the Loans plus the "Loans" under the
Other Credit Agreement exceeds 50% of the then applicable Commitments
plus the "Commitments" under the Other Credit Agreement, equal to the
Applicable Utilization Fee Rate per annum. Such utilization fee shall
accrue from the date hereof to the Revolving Termination Date and
shall be due and payable quarterly in arrears on the last Business Day
of each calendar quarter commencing on September 30, 2000 through the
Revolving Termination Date (or, if later, the date of repayment of all
the Loans), with the final payment to be made on the Revolving
Termination Date (or, if later, the date of repayment of all the
Loans); provided that, in connection with any reduction or termination
of Commitments under Section 2.5, the accrued utilization fee
calculated for the period ending on such date shall also be paid on
the date of such reduction or termination, with the following
quarterly payment being calculated on the basis of the period from
such reduction or termination date to such quarterly payment date. The
utilization fees provided in this subsection shall accrue at all times
after the above- mentioned commencement date, including at any time
during which one or more conditions in Article IV are not met.
2.10 Computation of Fees and Interest. (a) All computations of
interest for Base Rate Loans when the Base Rate is determined by Bank of
America's "prime rate" shall be made on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed. All other computations
of fees and interest shall be made on the basis of a 360-day year and
actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue
during each period during which interest or such fees are computed from the
first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Borrowers and the Banks in the absence
of manifest error. The Agent will, at the request of either Borrower
or any Bank, deliver to such Borrower or the Bank, as the case may be,
a statement showing the quotations used by the Agent in determining
any interest rate and the resulting interest rate.
2.11 Payments by the Borrowers. (a) All payments to be made by the
Borrowers shall be made without set-off, recoupment or counterclaim. Except
as otherwise expressly provided herein, all payments by the Borrowers shall
be made to the Agent for the account of the Banks at
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the Agent's Payment Office, and shall be made in dollars and in
immediately available funds, no later than 3:00 p.m. (Charlotte time) on
the date specified herein. The Agent will promptly distribute to each Bank
its Pro Rata Share (or other applicable share as expressly provided
herein) of such payment in like funds as received. Any payment received by
the Agent later than 3:00 p.m. (Charlotte time) shall be deemed to have
been received on the following Business Day and any applicable interest or
fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other
than a Business Day, such payment shall be made on the following
Business Day, and such extension of time shall in such case be
included in the computation of interest or fees, as the case may be.
(c) Unless the Agent receives notice from the applicable Borrower
prior to the date on which any payment is due to the Banks that the
applicable Borrower will not make such payment in full as and when
required, the Agent may assume that the applicable Borrower has made
such payment in full to the Agent on such date in immediately
available funds and the Agent may (but shall not be so required), in
reliance upon such assumption, distribute to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the
extent the applicable Borrower has not made such payment in full to
the Agent, each Bank shall repay to the Agent on demand such amount
distributed to such Bank, together with interest thereon at the
Federal Funds Rate for each day from the date such amount is
distributed to such Bank until the date repaid.
2.12 Payments by the Banks to the Agent. (a) Unless the Agent receives
notice from a Bank on or prior to the Closing Date or, with respect to any
Borrowing after the Closing Date, at least one Business Day prior to the
date of such Borrowing, that such Bank will not make available as and when
required hereunder to the Agent for the account of a Borrower the amount of
that Bank's Pro Rata Share of the Borrowing, the Agent may assume that each
Bank has made such amount available to the Agent in immediately available
funds on the Borrowing Date and the Agent may (but shall not be so
required), in reliance upon such assumption, make available to the
applicable Borrower on such date a corresponding amount. If and to the
extent any Bank shall not have made its full amount available to the Agent
in immediately available funds and the Agent in such circumstances has made
available to the applicable Borrower such amount, that Bank shall on the
Business Day following such Borrowing Date make such amount available to
the Agent, together with interest at the Federal Funds Rate for each day
during such period. A notice of the Agent submitted to any Bank with
respect to amounts owing under this subsection (a) shall be conclusive,
absent manifest error. If such amount is so made available, such payment to
the Agent shall constitute such Bank's Loan on the date of Borrowing for
all purposes of this Agreement. If such amount is not made available to the
Agent on the Business Day following the Borrowing Date, the Agent will
notify the applicable Borrower of such failure to fund and, upon demand by
the Agent, the applicable Borrower shall pay such amount to the Agent for
the Agent's account within two Business Days, together with interest
thereon for each day elapsed since the date of such Borrowing, at a rate
per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
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(b) The failure of any Bank to make any Loan on any Borrowing
Date shall not relieve any other Bank of any obligation hereunder to
make a Loan on such Borrowing Date, but no Bank shall be responsible
for the failure of any other Bank to make the Loan to be made by such
other Bank on any Borrowing Date.
2.13 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it
any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Pro Rata Share, such Bank
shall immediately (a) notify the Agent of such fact, and (b) purchase from
the other Banks such participations in the Loans made by them as shall be
necessary to cause such purchasing Bank to share the excess payment pro
rata with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from the purchasing Bank, such
purchase shall to that extent be rescinded and each other Bank shall repay
to the purchasing Bank the purchase price paid therefor, together with an
amount equal to such paying Bank's ratable share (according to the
proportion of (i) the amount of such paying Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank) of any
interest or other amount paid or payable by the purchasing Bank in respect
of the total amount so recovered. The Borrowers agree that any Bank so
purchasing a participation from another Bank may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right
of set-off, but subject to Section 10.11) with respect to such
participation as fully as if such Bank were the direct creditor of the
Borrowers in the amount of such participation. The Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify
the Banks following any such purchases or repayments.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 Taxes. (a) Any and all payments by the Borrowers to each Bank or
the Agent under this Agreement and any other Loan Document shall be made
free and clear of, and without deduction or withholding for any Taxes. In
addition, the Borrowers shall pay all Other Taxes.
(b) The Borrowers agree to indemnify and hold harmless the
applicable Bank and the Agent for the full amount of Taxes or Other
Taxes (including any Taxes or Other Taxes imposed by any jurisdiction
on amounts payable under this Section) paid by such Bank or the Agent
and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted;
provided, however, that any claim under this Section 3.1 must be
reasonable. Payment under this indemnification shall be made within 30
days after the date the Bank or the Agent makes written demand
therefor, stating in reasonable detail the basis for its
indemnification claim.
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(c) If a Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Bank or the Agent, then:
(i) the sum payable shall be increased as necessary so that after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section) such
Bank or the Agent, as the case may be, receives an amount equal to the sum
it would have received had no such deductions or withholdings been made;
(ii) the applicable Borrower shall make such deductions and
withholdings; and
(iii) the applicable Borrower shall pay the full amount deducted
or withheld to the relevant taxing authority or other authority in
accordance with applicable law.
(d) Within 30 days after the date of any payment by a Borrower of
Taxes or Other Taxes, such Borrower shall furnish the Agent the original or
a certified copy of a receipt evidencing payment thereof, or other evidence
of payment reasonably satisfactory to the Agent.
(e) If a Borrower is required to pay additional amounts to any Bank or
the Agent pursuant to subsection (c) of this Section, then such Bank shall
use reasonable efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any
such additional payment by such Borrower which may thereafter accrue, if
such change in the judgment of such Bank is not otherwise disadvantageous
to such Bank.
3.2 Illegality. (a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for such Bank or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by such Bank to the Borrowers
through the Agent, any obligation of that Bank to make Offshore Rate Loans shall
be suspended until such Bank notifies the Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain any Offshore
Rate Loan, the Borrowers shall, upon its receipt of notice of such fact and
demand from such Bank (with a copy to the Agent), prepay in full such
Offshore Rate Loans of that Bank then outstanding, together with interest
accrued thereon and amounts required under Section 3.4, either on the last
day of the Interest Period thereof, if the Bank may lawfully continue to
maintain such Offshore Rate Loans to such day, or immediately, if the Bank
may not lawfully continue to maintain such Offshore Rate Loan. If a
Borrower is required to so prepay any Offshore Rate
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Loan, then concurrently with such prepayment, such Borrower may borrow from
the affected Bank, in the amount of such repayment, a Base Rate Loan or a
Federal Funds Rate Loan.
(c) If a Bank makes a determination under this Section 3.2, then such
Bank shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such illegality, if such change in the judgment of such Bank
is not otherwise disadvantageous to such Bank.
3.3 Increased Costs and Reduction of Return. (a) If any Bank determines
that, due to either (i) the introduction of or any change (other than any change
by way of imposition of or increase in reserve requirements included in the
calculation of the Offshore Rate or in the interpretation of any law or
regulation or (ii) the compliance by that Bank with any guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to such Bank of agreeing
to make or making, funding or maintaining any Offshore Rate Loans, then the
Borrowers shall be liable for, and shall from time to time, upon demand (with a
copy of such demand to be sent to the Agent), pay to the Agent for the account
of such Bank, additional amounts as are sufficient to compensate such Bank for
such increased costs; provided, however, the Borrowers shall not be required to
pay any such expense if the applicable Bank shall not notify the Borrowers of
such expense within 180 days of such Bank being aware of its incurrence.
(b) If any Bank shall have determined that (i) the introduction of any
Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or
(iv) compliance by the Bank (or its Lending Office) or any corporation
controlling the Bank with any Capital Adequacy Regulation, affects or would
affect the amount of capital required or expected to be maintained by the
Bank or any corporation controlling the Bank and (taking into consideration
such Bank's or such corporation's policies with respect to capital adequacy
and such Bank's desired return on capital) determines that the amount of
such capital is increased as a consequence of its Commitment[s], loans,
credits or obligations under this Agreement, then, upon demand of such Bank
to the Borrowers through the Agent, the Borrowers shall pay to the Bank,
from time to time as specified by the Bank, additional amounts sufficient
to compensate the Bank for such increase; provided, however, the Borrowers
shall not be required to pay any such expense if the applicable Bank shall
not notify the Borrowers of such expense within 180 days of such Bank being
aware of its incurrence.
(c) If a Borrower is required to pay additional amounts to any Bank or
the Agent pursuant to this Section 3.3, then such Bank shall use reasonable
efforts (consistent with legal and regulatory restrictions) to change the
jurisdiction of its Lending Office so as to
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eliminate any such additional payment by such Borrowers which may
thereafter accrue, if such change in the judgment of such Bank is not
otherwise disadvantageous to such Bank.
3.4 Funding Losses. Each Borrower shall reimburse each Bank and hold each
Bank harmless from any loss or expense which the Bank may sustain or incur as a
consequence of:
(a) the failure of such Borrower to make on a timely basis any payment
of principal of any Offshore Rate Loan;
(b) the failure of such Borrower to borrow, continue or convert a Loan
after such Borrower has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of such Borrower to make any prepayment in accordance
with any notice delivered under Section 2.6;
(d) the prepayment or other payment (including after acceleration
thereof) of an Offshore Rate Loan on a day that is not the last day of the
relevant Interest Period; or
(e) the automatic conversion under Section 2.4 of any Offshore Rate
Loan to a Base Rate Loan on a day that is not the last day of the relevant
Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Borrowers to the Banks under this Section and
under Section 3.3(a), each Offshore Rate Loan made by a Bank (and each related
reserve, special deposit or similar requirement) shall be conclusively deemed to
have been funded at the Offshore Base Rate used in determining the Offshore Rate
for such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
3.5 Inability to Determine Rates. If the Agent determines that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate for any requested Interest Period with respect to a proposed Offshore Rate
Loan, or that the Offshore Rate applicable pursuant to Section 2.8(a) for any
requested Interest Period with respect to a proposed Offshore Rate Loan does not
adequately and fairly reflect the cost to the Banks of funding such Loan, the
Agent will promptly so notify the Borrowers and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans hereunder shall
be suspended until the Agent revokes such notice in writing. Upon receipt of
such notice, each Borrower may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If such Borrower does not revoke
such Notice, the Banks shall make, convert or continue the Loans, as proposed by
such Borrower, in the amount specified in the applicable notice submitted by
such Borrower, but such Loans shall be made, converted or continued as Base Rate
Loans.
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3.6 Certificates of Banks. Any Bank claiming reimbursement or compensation
under this Article III shall deliver to the Borrowers (with a copy to the Agent)
a certificate setting forth in reasonable detail the amount payable to the Bank
hereunder and such certificate shall be presumptively correct and binding on the
Borrowers in the absence of manifest error.
3.7 Substitution of Banks. Upon the receipt by the Borrowers from any Bank
(an "Affected Bank") of a claim for compensation under Section 3.1 or 3.3, or
any determination of illegality under Section 3.2, the Borrowers may: (i)
request the Affected Bank to use its best efforts to obtain a replacement bank
or financial institution satisfactory to the Borrowers to acquire and assume all
or a ratable part of all of such Affected Bank's Loans and Commitment (a
"Replacement Bank"); (ii) request one more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Commitment; or (iii)
designate a Replacement Bank. Any such designation of a Replacement Bank under
clause (i) or (iii) shall be subject to the prior written consent of the Agent
(which consent shall not be unreasonably withheld).
3.8 Survival. The agreements and obligations of the Borrowers in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions of Initial Loans. The obligation of each Bank to make its
initial Loan hereunder is subject to the condition that the Agent have received
on or before the Closing Date all of the following, in form and substance
satisfactory to the Agent and each Bank, and in sufficient copies for each Bank:
(a) Credit Agreement and Notes. This Agreement and the Notes executed
by each party thereto;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of each
Borrower authorizing the transactions contemplated hereby, certified as of
the Closing Date by the Secretary or an Assistant Secretary of such
Borrower; and
(ii) A certificate of the Secretary or Assistant Secretary of
each Borrower certifying the names and true signatures of the officers of
such Borrower authorized to execute, deliver and perform, as applicable,
this Agreement, and all other Loan Documents to be delivered by it
hereunder;
(c) Organization Documents; Good Standing. Each of the following
documents:
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(i) the articles or certificate of incorporation and the bylaws
of each Borrower as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of such Borrower as of the Closing Date;
and
(ii) a good standing certificate for such Borrower from the
Secretary of State (or similar, applicable Governmental Authority) of its
state of incorporation;
(d) Legal Opinions. An opinion of (i) Gardner, Carton & Douglas,
counsel to the Borrowers and (ii) Alan G. Berkshire, general counsel of the
Borrowers addressed to the Agent and the Banks, substantially in the forms
of Exhibits D-1 and D-2.
(e) Payment of Fees. Evidence of payment by the Borrowers of all
accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, together with Attorney Costs of Bank of
America to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute Bank of America's
reasonable estimate of Attorney Costs incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between the Borrowers and
Bank of America upon an invoice itemizing charges); including any such
costs, fees and expenses arising under or referenced in Sections 2.9 and
10.4;
(f) Certificate. A certificate signed by a Responsible Officer, dated
as of the Closing Date, stating that:
(i) the representations and warranties contained in Article V are
true and correct on and as of such date, as though made on and as of such
date;
(ii) no Default or Event of Default exists or would result from
the initial Borrowing;
(iii) there has occurred since December 31, 1999, no event or
circumstance that has resulted or could reasonably be expected to result in
a Material Adverse Effect; and
(iv) the Credit Agreement dated as of August 8, 1997 by and among
the Parent, certain financial institutions, The First National Bank of
Chicago, as Agent and Bank of America and The Chase Manhattan Bank, as
Co-Agents has been paid in full and terminated; and
(g) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Bank may request.
4.2 Conditions to All Borrowings. The obligation of each Bank to make any
Loan to be made by it (including its initial Loan) is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date:
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(a) Notice of Borrowing. The Agent shall have received a Notice of
Borrowing;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct on
and as of such Borrowing Date with the same effect as if made on and as of
such Borrowing Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall exist or
shall result from such Borrowing.
Each Notice of Borrowing submitted by a Borrower hereunder shall constitute a
representation and warranty by such Borrower hereunder, as of the date of each
such notice and as of each Borrowing Date, that the conditions in Section 4.2
are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Agent and each Bank that:
5.1 Corporate Existence; Conduct of Business. Such Borrower and its
Subsidiaries (a) are corporations duly incorporated, validly existing and in
good standing under the laws of their respective jurisdictions of incorporation,
(b) are duly qualified and in good standing as foreign corporations in each
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where failure to be so qualified
will not have a Material Adverse Effect, and (c) possess all licenses,
registrations and authorizations from and with any Governmental Authority,
self-regulatory organization or securities exchange necessary or material to the
conduct of its business as presently conducted. The Subsidiary Borrower is (a) a
broker- dealer duly registered under the Exchange Act, (b) a member in good
standing of the NASD, (c) not in arrears in regard to any assessment of the
SIPC, and (d) has received no notice from the SEC, MSRB, NASD or any other
Governmental Authority, self-regulatory organization or securities exchange of
any alleged rule violation or other circumstance which could reasonably be
expected to have a Material Adverse Effect.
5.2 Authorization and Validity. Such Borrower has all requisite power and
authority (corporate and otherwise) to execute and deliver each of the Loan
Documents to which it is a party and to perform its obligations thereunder. The
execution and delivery by such Borrower of the Loan Documents to which it is a
party and the performance of its obligations thereunder have been duly
authorized by proper corporate proceedings and such Loan Documents constitute
legal, valid and binding obligations of such Borrower, enforceable against such
Borrower in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting
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the enforcement of creditors' right generally or by general principles of equity
limiting the availability of equitable remedies.
5.3 Compliance with Laws and Contracts. Such Borrower and its Subsidiaries
have complied in all material respects with all applicable laws, statutes,
rules, regulations, orders and restrictions of any Governmental Authority,
self-regulatory organization or securities exchange having jurisdiction over the
conduct of their respective businesses or the ownership of their respective
properties (including, without limitation the Exchange Act, the Advisers Act,
the Investment Company Act and the applicable rules and regulations of the SEC,
NASD, NYSE, MSRB and CFTC), except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect. Neither the execution
and delivery by such Borrower of the Loan Documents, the application of the
proceeds of its Loans, the consummation of any transaction contemplated by the
Loan Documents, nor compliance with the provisions of the Loan Documents will,
or at the relevant time did, (a) violate any law, rule, regulation (including
Regulations T, U and X), order, writ, judgment, injunction, decree or award
binding on such Borrower or any Subsidiary thereof or such Borrower's or any
such Subsidiary's charter, articles or certificate of incorporation or by-laws,
(b) violate the provisions of or require the approval or consent of any party to
any indenture, instrument or agreement to which such Borrower or any such
Subsidiary is a party or is subject, or by which it, or its property, is bound
or conflict with or constitute a default thereunder, or result in the creation
or imposition of any Lien (other than Liens permitted by Section 6.17) in, of or
on the property of such Borrower or any such Subsidiary pursuant to the terms of
any such indenture, instrument or agreement, or (c) require the consent or
approval of any Person, except for any violation of, or failure to obtain an
approval or consent required under, any such indenture, instrument or agreement
that could not have a Material Adverse Effect.
5.4 Governmental Consents. No order, consent, approval, qualification,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of, any Governmental
Authority, self-regulatory organization or securities exchange is necessary or
required in connection with the execution, delivery, consummation performance
of, or the legality, validity, binding effect or enforceability of, any of the
Loan Documents, the application of the proceeds of the Loans, or the
consummation of any other transaction contemplated by the Loan Documents.
Neither such Borrower nor any Subsidiary thereof is in default under or in
violation of any foreign, federal, state or local law, rule, regulation, order,
writ, judgment, injunction, decree or award binding upon or applicable to such
Borrower or such Subsidiary, in each case the consequence of which default or
violation could reasonably be expected to have a Material Adverse Effect.
5.5 Financial Statements. The Parent has heretofore furnished to each of
the Banks (a) the December 31, 1999 audited consolidated financial statements of
the Parent and its Subsidiaries, (b) the March 31, 2000 unaudited consolidated
financial statements of the Parent and its Subsidiaries, and (c) the December
31, 1999 audited financial statements for the Subsidiary Borrower (collectively,
the "Financial Statements"). The Parent has also heretofore furnished to each of
the Banks the December 31, 1999, March 31, 2000 and June 30, 2000 quarterly
Financial and Operational Combined Uniform Single (FOCUS) Reports of the
Subsidiary Borrower (the
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"FOCUS Reports"). Each of the Financial Statements was prepared in accordance
with GAAP and fairly presents the consolidated financial condition, results of
operations, changes in stockholders' equity and cash flows of the Parent and its
Subsidiaries (or of the applicable Subsidiary, as the case may be) at such dates
and for the respective periods then ended (except, in the case of such unaudited
statements, for normal year-end audit adjustments). The FOCUS Reports are
correct and complete in all material respects and conform in all material
respects to Exchange Act requirements and applicable SEC rules and regulations.
5.6 Material Adverse Change. No material adverse change in the business,
Property, condition (financial or otherwise), performance, or results of
operations of the Parent and its Subsidiaries taken as a whole has occurred
since December 31, 1999.
5.7 Taxes. The Parent and its Subsidiaries have filed or caused to be filed
on a timely basis and in correct form all United States federal and applicable
state tax returns and other material tax returns which are required to be filed
and have paid all material taxes due pursuant to said returns or pursuant to any
assessment received by the Parent or any Subsidiary, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided in accordance with GAAP. As of the date hereof, the United States
income tax returns of the Parent on a consolidated basis have been audited by
the Internal Revenue Service through its Fiscal Year ending December 31, 1995
and, to the Parent's knowledge, there are no pending audits or investigations
regarding the Parent's or its Subsidiaries' federal, state or local tax returns
which could reasonably be expected to have a Material Adverse Effect. No tax
liens have been filed and no claims are being asserted with respect to any such
taxes which could reasonably be expected to have a Material Adverse Effect. The
charges, accruals and reserves on the books of the Parent and its Subsidiaries
in respect of any taxes or other governmental charges are in accordance with
GAAP.
5.8 Litigation and Contingent Obligations. There is no litigation,
arbitration, proceeding, inquiry or investigation by any Governmental Authority,
self-regulatory organization or securities exchange pending or, to the knowledge
of any of such Borrower's officers, threatened against or affecting such
Borrower or any Subsidiary thereof or any of their respective Properties which
could reasonably be expected to have a Material Adverse Effect or to prevent,
enjoin or unduly delay the making of the Loans or the consummation of the
transactions contemplated by this Agreement. Neither such Borrower nor any
Subsidiary thereof has any material contingent obligations not provided for or
disclosed in the Financial Statements.
5.9 Subsidiaries. Schedule 5.9 hereto contains an accurate list of all of
the Parent's existing Subsidiaries as of the date of this Agreement, setting
forth their respective jurisdictions of incorporation and the percentage of
their capital stock owned by the Parent or other Subsidiaries. Except as set
forth on Schedule 5.9 and except for Seed Money, as of the date hereof, the
Parent does not own or hold, directly or indirectly, any capital stock or equity
security of, or any equity partnership interest in, any Person other than such
Subsidiaries.
5.10 ERISA. Except as disclosed on Schedule 5.10, neither the Parent nor
any other member of the Controlled Group maintains any Single Employer Plans,
and no Single Employer
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Plan has any Unfunded Liability. Neither the Parent nor any other member of the
Controlled Group maintains, or is obligated to contribute to, any Multiemployer
Plan or has incurred, or is reasonably expected to incur, any withdrawal
liability to any Multiemployer Plan. Each Plan complies in all material respects
with all applicable requirements of law and regulations. Neither the Parent nor
any member of the Controlled Group has, with respect to any Plan, failed to make
any contribution or pay any amount required under Section 412 of the Code or
Section 302 of ERISA or the terms of such Plan which could reasonably be
expected to be in excess of $5,000,000. There are no pending or, to the
knowledge of the Parent, threatened claims, actions, investigations or lawsuits
against any Plan, any fiduciary thereof, or the Parent or any member of the
Controlled Group with respect to a Plan which could reasonably be expected to
have a Material Adverse Effect. Neither the Parent nor any member of the
Controlled Group has engaged in any prohibited transaction (as defined in
Section 4975 of the Code or Section 406 of ERISA) in connection with any Plan
which would subject such Person to any material liability. Within the last five
years neither the Parent nor any member of the Controlled Group has engaged in a
transaction which resulted in a Single Employer Plan with an Unfunded Liability
being transferred out of the Controlled Group. No Termination Event has occurred
or is reasonably expected to occur with respect to any Plan which is subject to
Title IV of ERISA.
5.11 Defaults. No Event of Default or Default has occurred and is
continuing.
5.12 Federal Reserve Regulations. Neither such Borrower nor any Subsidiary
thereof is engaged, directly or indirectly, principally, or as one of its
important activities, in the business of extending or arranging for the
extension of, credit for the purpose of purchasing or carrying Margin Stock. No
part of the proceeds of any Loan will be used in a manner which would violate,
or result in any violation of, Regulation T, Regulation U or Regulation X.
Neither the making of a Loan hereunder or the use of the proceeds thereof will
violate or be inconsistent with the provisions of, Regulation T, Regulation U or
Regulation X. Following the application of the proceeds of the Loans, less than
25% of the value (as determined by any reasonable method) of the assets of the
Borrowers and their Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder taken as a whole have been, and will
continue to be, represented Margin Stock.
5.13 Investment Company; Public Utility Holding Company. Neither such
Borrower nor any Subsidiary thereof is, or after giving effect to any Loan will
be, an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended. Neither
such Borrower nor any Subsidiary thereof is subject to regulation under the
Public Utility Holding Company Act of 1935, as amended.
5.14 Certain Fees. No broker's or finder's fee or commission was, is or
will be payable by such Borrower or any Subsidiary thereof with respect to any
of the transactions contemplated by this Agreement. Borrowers hereby jointly and
severally agree to indemnify the Agent and the Banks against and agree that they
will hold each of them harmless from any claim, demand or liability for any
broker's finder's fees or commissions alleged to have been incurred by the
Borrowers in connection with any of the transactions contemplated by this
Agreement and any expenses (including, without limitation, attorneys' fees and
time charges of attorneys for the Agent or any
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Bank, which attorneys may be employees of the Agent or any Lender) arising in
connection with any such claim, demand or liability. No other similar fee or
commissions will be payable by such Borrower or any Subsidiary thereof for any
other services rendered to such Borrower or such Subsidiary thereof ancillary to
any of the transactions contemplated by this Agreement.
5.15 Ownership of Properties. Such Borrower and its Subsidiaries have a
subsisting leasehold interest in, or good and marketable title, free of all
Liens, other than those permitted by Section 6.17, to all of the properties and
assets reflected in the Financial Statements as being owned by it, except for
assets sold, transferred or otherwise disposed of in the ordinary course of
business since the date thereof and such defects of title and Liens as could
not, individually or in the aggregate, have a Material Adverse Effect. To the
knowledge of such Borrower, there are no actual, threatened or alleged defaults
with respect to any leases of real property under which such Borrower or any
Subsidiary thereof is lessee or lessor which could reasonably be expected to
have a Material Adverse Effect.
5.16 Material Agreements. Neither such Borrower nor any Subsidiary thereof
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect or which restricts or imposes conditions upon the ability of any
Subsidiary thereof to (a) pay dividends or make other distributions on its
capital stock, (b) make loans or advances to such Borrower, (c) repay loans or
advances from such Borrower, or (d) grant Liens to the Agent to secure the
Obligations. Neither such Borrower nor any Subsidiary thereof is in default in
the performance, observance or fulfilment of any of the obligations, covenants
or conditions contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
5.17 Insurance. Such Borrower and its Subsidiaries maintain with
financially sound and reputable insurance companies insurance on their Property
in such amounts and covering such risk as is consistent with sound business
practice.
5.18 Disclosure. None of the (a) information, exhibits or reports furnished
or to be furnished by such Borrower or any Subsidiary thereof to the Agent or to
any Bank in connection with the negotiation of the Loan Documents, taken as a
whole, or (b) representations or warranties of such Borrower or any Subsidiary
thereof contained in this Agreement, the other Loan Documents or any other
document, certificate or written statement furnished to the Agent or the Banks
by or on behalf such Borrower or any Subsidiary thereof pursuant to this
Agreement contained, contains or will contain any untrue statement of a material
fact or omitted, omits or will omit to state a material fact necessary in order
to make the statements contained herein or therein not misleading in light of
the circumstances in which they were made. There is no fact known to such
Borrower (other than matters of a general economic nature) that has had or could
reasonably be expected to have a Material Adverse Effect and that has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Banks for use in connection with the transactions contemplated
by this Agreement.
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ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Majority Banks shall
otherwise consent in writing:
6.1 Financial Reporting. The Parent will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with GAAP, consistently applied, and will furnish to the Agent, with sufficient
copies for the Banks:
(a) As soon as practicable and in any event within 90 days after the
close of each of its fiscal years, an unqualified audit report certified by
KPMG or other independent certified public accountants, acceptable to the
Banks, prepared in accordance with GAAP on a consolidated and consolidating
basis (consolidating statements need not be certified by such accountants)
for itself and its Subsidiaries and for the Subsidiary Borrower (other than
consolidating financial statements), and to the extent available, for
Nuveen Advisory, Nuveen Institutional, Nuveen Asset Management and
Rittenhouse, including balance sheets as of the end of such period and
related statements of income, and changes in stockholders' equity (to the
extent available for entities other than the Parent) and cash flows
(provided that so long as the common stock of the Parent is listed for
trading on the NYSE, the foregoing requirement as to the Parent's
consolidated financial statements may be satisfied by the delivery of the
Parent's Annual Report to Stockholders and its Annual Report on Form 10-K
filed with the SEC containing such information) and accompanied by (i) any
management letter prepared by said accountants and (ii) a certificate of
said accountants that, in the course of the examination necessary for their
certification of the foregoing, they have obtained no knowledge of any
Event of Default or Default, or if, in the opinion of such accountants, any
Event of Default or Default shall exist, stating the nature and status
thereof.
(b) As soon as practicable and in any event within 45 days after the
close of the first three fiscal quarters of each of its fiscal years, for
itself and its Subsidiaries, and for each of the Subsidiary Borrower,
Nuveen Advisory, Nuveen Institutional, Nuveen Asset Management and
Rittenhouse consolidated unaudited balance sheets as at the close of each
such period and consolidated statements of income, changes in stockholders'
equity and cash flows for the period from the beginning of such fiscal year
to the end of such quarter, all certified by its chief financial officer
(provided that so long as the common stock of the Parent is listed for
trading on the NYSE, the foregoing requirement as to the Parent's
consolidated financial statements may be satisfied by the delivery of the
Parent's Quarterly Report on Form 10-Q as filed with the SEC containing
such information; and provided further, that the foregoing requirement as
to the quarterly financial statements of the Subsidiary Borrower, Nuveen
Advisory and Nuveen Institutional may be satisfied by the delivery of Form
17-H of the Subsidiary Borrower and its Materially Associated Persons for
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each fiscal quarter (including the fourth fiscal quarter) as filed with the
SEC containing such information.)
(c) As soon as practicable and in any event within 25 days after the
close of each fiscal quarter of each of its fiscal years, the FOCUS report
for such fiscal quarter filed by the Subsidiary Borrower with the SEC.
(d) Together with the financial statements required by clauses (a) and
(b) above and additionally for purposes of determining the Applicable
Margin within 45 days after the close of the fourth fiscal quarter of each
fiscal year (which preliminary determination shall be subject to adjustment
upon receipt of audited annual financial statements (or Form 10-K) and
shall not be deemed to constitute a misrepresentation or breach if prepared
in good faith and the audited numbers differ from the unaudited fourth
quarter results), a compliance certificate in substantially the form of
Exhibit C hereto signed by its chief financial officer showing the
calculations necessary to determine compliance with this Agreement and
stating that no Event of Default or Default exists, or if any Event of
Default or Default exists, the nature and thereof.
(e) As soon as possible and in any event within 10 days after any
officer of the Parent knows that any Termination Event has occurred with
respect to any Plan, a statement, signed by the chief financial officer of
the Parent, describing said Termination Event and the action which the
Parent proposes to take with respect thereto.
(f) As soon as possible and in any event within 10 days after any
officer of the Parent learns thereof, notice of the assertion or
commencement of any claim, action, litigation, suit or proceeding against
or affecting the Parent or any Subsidiary, including any investigation or
proceeding commenced by the SEC, NASD, MSRB, NYSE or any other Governmental
Authority, self-regulatory organization or securities exchange, which could
have a Material Adverse Effect.
(g) Promptly upon the furnishing thereof to the shareholders of the
Parent copies of all financial statements, reports and proxy statements so
furnished.
(h) Within 15 days after the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports which the Parent or any of its Subsidiaries files with the
Securities and Exchange Commission.
(i) Such other information (including non-financial information) as the
Agent or any Bank may from time to time reasonably request.
6.2 Use of Proceeds. Each Borrower will use proceeds of its Loans to meet
the general corporate needs, including Purchases, of such Borrower and its
Subsidiaries. Neither Borrower will, nor will it permit any Subsidiary thereof
to, use any of the proceeds of its Loans to purchase or carry any Margin Stock
in violation of Regulation T, Regulation U or Regulation X, or to finance the
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Purchase of any Person which has not been approved and recommended by the board
of directors (or functional equivalent thereof) of such Person.
6.3 Notice of Default. Within 5 days after any officer of either Borrower
has knowledge thereof, such Borrower will give notice in writing to the Banks of
the occurrence of (a) any Event of Default or Default and (b) any other event or
development, financial or other, relating specifically to such Borrower or any
of its Subsidiaries (and not of a general economic or political nature) which
could reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business. Each Borrower will, and will cause each of its
Subsidiaries to,(a) subject to Section 6.12(c), preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of
its incorporation, (b) maintain all registrations, licenses, consents, approvals
and authorizations from and with any Governmental Authority, self-regulatory
organization or securities exchange necessary or material to the conduct of its
business, and (c) qualify and remain qualified as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where failure to qualify could not
have a Material Adverse Effect. The Borrowers will not, and will not permit any
of their Subsidiaries to, engage in any material line of business substantially
different from those lines of business carried on by them on the date hereof
(provided that further entry into the financial services business, as well as
service businesses related thereto, will not be prohibited by this Section 6.4).
6.5 Taxes. The Parent will, and will cause each Subsidiary to, timely file
complete and correct in all material respects United States federal and
applicable foreign, state and local tax returns required by applicable law and
pay when due all taxes, assessments and governmental charges and levies upon it
or its income, profits or Property, except those which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside.
6.6 Insurance. The Parent will, and will cause each Subsidiary to, maintain
with financially sound and reputable insurance companies insurance in such
amounts and covering such risks as is consistent with sound business practice,
and the Parent will furnish to the Agent and any Bank upon request full
information as to the insurance carried.
6.7 Compliance with Laws; Material Contractual Obligations. The Parent
will, and will cause each Subsidiary to, comply with all laws, statutes
(including, without limitation, the Exchange Act, the Advisers Act and the
Investment Company Act), rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, the failure to comply
with which could reasonably be expected to have a Material Adverse Effect and
with all Contractual Obligations, the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
6.8 Maintenance of Properties. The Parent will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
all material portions of its Property in good
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repair, working order and condition, and make all necessary and proper repairs,
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times.
6.9 Inspection. The Parent will, and will cause each Subsidiary to, permit
the Agent and the Banks, upon at least two Business Days' notice (unless an
Event of Default or Default has occurred and is continuing) and during normal
business hours, by their respective representatives and agents, to inspect any
of the Property, corporate books and financial records of the Parent and each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Parent and each Subsidiary, and to discuss the affairs,
finances and accounts of the Parent and each Subsidiary with, and to be advised
as to the same by, their respective officers. The Parent will keep or cause to
be kept, and cause each Subsidiary to keep or cause to be kept, appropriate
records and books of account in which complete entries are to be made reflecting
its and their business and financial transactions, such entries to be made in
accordance with GAAP consistently applied.
6.10 Ownership of Subsidiaries. The Parent will continue to own directly or
indirectly, free and clear of all Liens and restrictions, 100% of the
outstanding shares of capital stock of the Subsidiary Borrower, Nuveen Advisory,
Nuveen Institutional, Nuveen Asset Management and, Rittenhouse other than in the
case of any of the foregoing, shares owned by employees thereof through employee
related compensation and stock option plans.
6.11 Indebtedness. The Parent will not, nor will it permit any Subsidiary
to, create, incur or suffer to exist any Indebtedness, except:
(a) The Loans;
(b) Short-term Indebtedness used to finance municipal, corporate and
treasury bonds and UIT inventory positions;
(c) Securities sold under agreements to repurchase (to the extent such
obligations constitute Indebtedness) and Rate Hedging Obligations incurred
in the ordinary course of business;
(d) Contingent Obligations permitted by Section 6.16;
(e) Contingent pay-out and similar obligations relating to prior
acquisitions by the Parent and to acquisitions permitted hereunder;
(f) Unsecured Indebtedness relating to the financing of Distribution
Receivables in an aggregate principal amount not exceeding the amount of
such Receivables; and
(g) Other unsecured Indebtedness not otherwise permitted by this
Section 6.11 in an aggregate principal amount for the Parent and all its
Subsidiaries not exceeding $10,000,000.
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6.12 Merger. The Parent will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except that (a) a
Wholly-Owned Subsidiary (other than the Subsidiary Borrower) may merge into the
Parent or any Wholly-Owned Subsidiary of the Parent, (b) the Parent or any
Subsidiary may merge or consolidate with any other Person so long as the Parent
or such Subsidiary is the continuing or surviving corporation and, prior to and
after giving effect to such merger or consolidation, no Event of Default or
Default shall exist, and (c) any Subsidiary (other than the Subsidiary Borrower)
may enter into a merger or consolidation as a means of effecting a disposition
permitted by Section 6.13.
6.13 Sale of Assets. The Parent will not, nor will it permit any Subsidiary
to, lease, sell, transfer or otherwise dispose of its Property, to any other
Person except for (a) sales of municipal, corporate and treasury bonds and UIT
inventories, and other marketable securities sold in the ordinary course of
business, (b) Distribution Receivables sold to a third party without recourse to
the Parent or any of its Subsidiaries in order to effect a securitization of
such Receivables, (c) leases, sales, transfers or other dispositions of its
Property that, together with all other Property of the Parent and its
Subsidiaries previously leased, sold or disposed of (other than sales of
municipal, corporate and treasury bonds and UIT inventories, and other
marketable securities sold in the ordinary course of business) as permitted by
this Section 6.13 since the date hereof, do not constitute a Substantial Portion
of the Property of the Parent and its Subsidiaries, and (d) the sale, dividend
or other transfer to the Parent by the Subsidiary Borrower of all or any part of
the capital stock owned by Subsidiary Borrower in any of its Subsidiaries or
Affiliates.
6.14 Sale of Accounts. The Parent will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse, other than in the ordinary course of
business.
6.15 Investments and Purchases. The Parent will not, nor will it permit an
Subsidiary to, make or suffer to exist any Investments (including, without
limitation, loans and advances to, and other Investments in, Subsidiaries), or
commitments therefor, or to create any Subsidiary or to become or remain a
partner in any partnership or joint venture, or to make any Purchases, except:
(a) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described on Schedule 5.9 hereto;
(b) Securities purchased under agreements to resell; municipal,
corporate and treasury bonds and UIT inventories; and other marketable
securities purchased in the ordinary course of business;
(c) Obligations of, or fully guaranteed by, the United States of
America; commercial paper and other notes and securities rated investment
grade by a national securities rating agency; demand deposit accounts
maintained in the ordinary course of business; and bankers acceptances and
certificates of deposit issued by and time deposits with commercial banks
(whether domestic or foreign) having capital and surplus in excess of
$100,000,000;
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(d) Additional Purchases of or Investments in the stock of
Subsidiaries or the capital stock, assets, obligations or other securities
of or interest in other Persons provided that (i) each such Person shall be
(x) incorporated, organized or otherwise formed under the laws of any state
of the United States, or under the laws of Canada, any member country of
the European Economic Union, Switzerland, Liechtenstein, Japan, Australia
or New Zealand, and (y) engaged in a line of business not substantially
different from those lines of business carried on by the Parent and its
Subsidiaries on the date hereof (which for this purpose shall be deemed to
include the financial services business as well as service businesses
related thereto), (ii) the transaction shall have been approved and
recommended by the board of directors (or functional equivalent thereof )
of such Person, and (iii) no Event of Default or Default shall have
occurred and be continuing either immediately before or after giving effect
to such transaction and No Material Adverse Effect would result therefrom;
(e) Seed Money; and
(f) the creation or acquisition of Subsidiaries that are registered
investment advisors to mutual funds or other investment advisory clients.
6.16 Contingent Obligations. The Parent will not, nor will it permit any
Subsidiary to, make or suffer to exist any Contingent Obligation (including,
without limitation, any Contingent Obligation with respect to the obligations of
a Subsidiary), except (a) by endorsement of instruments for deposit or
collection in the ordinary course of business; and (b) pursuant to contingent
note purchase agreements in respect of loans to employees of Subsidiaries of the
Parent in amounts not in excess of the lesser of (i) the sum of the unused
Commitments and the unused "Commitments"under the Other Credit Agreement, or
(ii) $55,000,000, at any time outstanding.
6.17 Liens. The Parent will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Parent or any of its Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure the payment of obligations not more than 60 days past
due or which are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
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(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not
in any material way affect the marketability of the same or interfere with
the use thereof in the business of the Parent or the Subsidiaries; and
(e) Liens relating to Indebtedness permitted by Sections 6.11(b) and
6.11(c).
6.18 Affiliates. The Parent will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or
sale of any Property or service) with, or make any payment or transfer to, any
Affiliate except (a) in the ordinary course of business and pursuant to the
reasonable requirements of the Parent's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Parent or such Subsidiary
than the Parent or such Subsidiary would obtain in a comparable arms-length
transaction and (b) transactions among the Parent and Wholly-Owned Subsidiaries
of the Parent.
6.19 Change in Corporate Structure; Fiscal Year. The Parent shall not, nor
shall it permit any Subsidiary to, (a) permit any amendment or modification to
be made to its certificate or articles of incorporation or by-laws which is
materially adverse to the interests of the Banks (provided that the Parent shall
notify the Agent of any other amendment or modification thereto as soon as
practicable thereafter) or (b) change its fiscal year to end on any date other
than December 31 of each year.
6.20 Inconsistent Agreements. The Parent shall not, nor shall it permit any
Subsidiary to, enter into any indenture, agreement, instrument or other
arrangement which, (a) directly or indirectly prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon, the incurrence of the Obligations, the granting of Liens to secure the
Obligations, the amending of the Loan Documents or the ability of any Subsidiary
to (i) pay dividends or make other distributions on its capital stock, (ii) make
loans or advances to the Parent, or (iii) repay loans or advances from the
Parent or (b) contains any provision which would be violated or breached by the
making of Loans or by the performance by the Parent or any Subsidiary of any of
its obligations under any Loan Document.
6.21 Financial Covenants. The Parent on a consolidated basis with its
Subsidiaries shall:
6.21.1. Minimum Net Worth. At all times after the date hereof maintain
a minimum Net Worth of at least $360,000,000.
6.21.2. Leverage Ratio. Maintain a Leverage Ratio of not more than
2.75 to 1.
6.22 Subsidiary Borrower Net Capital. The Parent shall cause the Subsidiary
Borrower at all times after the date hereof to maintain a ratio of Net Capital
to Aggregate Debit Items (as such terms are defined pursuant to SEC Rule 15c3-1
under the Exchange Act) of not less than 5.5%.
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6.23 ERISA Compliance. The Parent will (a) fulfill, and cause each member
of the Controlled Group to fulfill, its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan, except where the
failure to do so would not result in any liabilities to members of the
Controlled Group in excess of $5,000,000, (b) comply, and cause each member of
the Controlled Group to comply, with all applicable provisions of ERISA and the
Code respect to each Plan, except where such failure or noncompliance
individually or in the aggregate would not have a Material Adverse Effect and
(c) not, and not permit any member of the Controlled Group to, (i) seek a waiver
of the minimum funding standards under ERISA, (ii) terminate or withdraw from
any Plan or (iii) take any other action with respect to any Plan which would
reasonably be expected to entitle the PBGC to terminate, impose liability in
respect of, or cause a trustee to be appointed to administer, any Plan, unless
the actions or events described in foregoing clauses (i), (ii) or (iii)
individually or in the aggregate would not have a Material Adverse Effect.
ARTICLE VII
DEFAULTS
7.1 The occurrence of any one or more of the following events shall
constitute an Event of Default:
(a) Representation or Warranty. Any representation or warranty made or
deemed made by or on behalf of either Borrower or any of its Subsidiaries
to the Banks or the Agent under or in connection with this Agreement, any
other Loan Document, any Loan, or any certificate or information delivered
in connection with this Agreement or any other Loan Document shall be false
in any material respect on the date as of which made or deemed made.
(b) Non-Payment. Nonpayment of (i) any principal of any Note when due,
or (ii) any interest upon any Note or any facility fee or other fee or
obligations under any of the Loan Documents within three (3) days after the
same becomes due.
(c) Specific Defaults. The breach by either Borrower of any of the
terms or provisions of Section 6.2, Section 6.3(a), Section 6.4 or Sections
6.10 through 6.17 or Sections 6.19 through 6.23.
(d) Other Defaults. The breach by either Borrower (other than a breach
which constitutes a Default under Section 7.1 (a), (b) or (c) of any of the
terms or provisions of this Agreement which is not remedied within thirty
(30) days after written notice from the Agent or any Bank.
(e) Cross-Default. Failure of either Borrower or any of its
Subsidiaries to pay any Indebtedness aggregating in excess of $10,000,000
for the Parent and all its Subsidiaries when due (other than contingent
pay-out and similar obligations relating to prior acquisitions of the
Parent and to acquisitions permitted hereunder as to which a good faith
dispute exists
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and which are being appropriately contested); or the default by either
Borrower or any of its Subsidiaries in the performance of any term,
provision or condition contained in any agreement or agreements under which
any such Indebtedness was created or is governed, or the occurrence of any
other event or existence of any other condition, the effect of any of which
is to cause, or to permit the holder or holders of such Indebtedness to
cause, such Indebtedness to become due prior to its stated maturity; or any
such Indebtedness of either Borrower or any of its Subsidiaries shall be
declared to be due and payable or required to be prepaid (other than by a
regularly scheduled payment) prior to the stated maturity thereof.
(f) Insolvency; Voluntary Proceedings. The Parent or any of its
Subsidiaries shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make
an assignment for the benefit of creditors, (iii) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any Substantial Portion
of its Property, (iv) institute any proceeding seeking an order for relief
under the Federal bankruptcy laws as now or hereafter in effect or seeking
to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition of
it or its debt under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors to fail or file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (v) take any corporate action to authorize or effect any of the
foregoing actions set forth in this Section 7.1(f), (vi) fail to contest in
good faith any appointment or proceeding described in Section 7.1(g) or
(vii) become unable to pay, not pay, or admit in writing its inability to
pay, its debts generally as they become due.
(g) Involuntary Proceedings. Without the application, approval or
consent of the Parent or any of its Subsidiaries, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Parent
or any of its Subsidiaries or any Substantial Portion of its Property, or a
proceeding described in Section 7.1(f)(iv) shall be instituted against the
Parent or any of Subsidiaries and such appointment continues undischarged
or such proceeding continues undismissed or unstayed for a period of sixty
consecutive days.
(h) Judgments. The Parent or any of its Subsidiaries shall fail within
thirty days to pay, bond or otherwise discharge any judgment or order for
the payment of money of $25,000,000 or more (or multiple judgments or
orders for the payments of an aggregate amount of $25,000,000 or more),
which is not stayed on appeal or otherwise being appropriately contested in
good faith and as to which no enforcement actions have been commenced.
(i) Change in Control. Any Change in Control shall occur.
(j) SIPC. The SEC or any self-regulatory organization has notified the
SIPC pursuant to Section 5(a)(1) of the Securities Investor Protection Act
of 1970 (the "SIPC Act") of facts which indicate that either Borrower is in
or is approaching financial difficulty,
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or the SIPC shall file an application for a protective decree with respect
to either Borrower under Section 5(a)(3) of the SIPC Act.
(k) Subsidiary Borrower. The SEC or other Governmental Authority shall
revoke or suspend the Subsidiary Borrower's license or authorization under
federal or state law to conduct business as a securities broker-dealer (and
such license or authorization shall not be reinstated within 5 days), or
the Subsidiary Borrower shall be suspended or expelled from membership in
the NASD or any other self-regulatory organization or securities exchange.
(l) ERISA. With respect to any Plan, the Parent or any Subsidiary
shall (a) incur any "accumulated funding deficiency" (as such term is
defined in Section 302 of ERISA) in excess of $10,000,000 whether or not
waived, or permit any Unfunded Liability to exceed $10,000,000; or (b)
permit the occurrence of any Termination Event which could result in a
liability to the Parent or an other member of the Controlled Group in
excess of $10,000,000.
7.2 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Majority Banks,
(a) declare the Commitment of each Bank to make Loans to be
terminated, whereupon such Commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Banks all rights and remedies
available to it and the Banks under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 7.1 (in the case of subsection (g) upon the expiration of
the 60-day period mentioned therein), the obligation of each Bank to make Loans
shall automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable without further act of the Agent or any Bank.
7.3 Rights Not Exclusive. The rights provided for in this Agreement and the
other Loan Documents are cumulative and are not exclusive of any other rights,
powers, privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter arising.
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ARTICLE VIII
GUARANTEE
8.1 Guarantee. The Parent hereby absolutely, unconditionally and
irrevocably (all of the following guaranteed and indemnified obligations being
collectively called the "Guaranteed Indebtedness"):
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations of the Subsidiary Borrower, now or
hereafter existing whether for principal, interest, fees, expenses or
otherwise, whether direct or indirect, absolute or contingent or now or
hereafter existing or due or to become due (including in all cases all such
amounts which would become due but for the operation of the automatic stay
under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.
Section 362(a), and the operation of Sections 502(b) and 506(b) of the
United States Bankruptcy Code, 11 U.S.C. Section 502(b) and Section
506(b)), and
(b) indemnifies and holds harmless each Bank and the Agent for any and
all costs and expenses (including reasonable attorneys' fees and expenses)
incurred by such Bank in enforcing any rights under this Article VIII.
8.2 Expenses. The Parent, irrevocably and unconditionally agrees to pay any
and all expenses, including reasonable attorneys' fees and disbursements
(including the allocated cost of internal counsel), incurred by any of the Banks
or the Agent in enforcing its rights under or in connection with this Article
VIII.
8.3 Waivers. The Parent agrees that the Guaranteed Indebtedness may be
extended or renewed, in whole or in part, without notice to or further assent
from it and without impairing its obligations under this Article VIII. The
Parent hereby waives (a) presentation to, demand of payment from, and protest
and notice of protest concerning the Guaranteed Indebtedness, (b) protest for
nonpayment of principal of or interest on the Guaranteed Indebtedness and (c)
all other notices to which it might otherwise be entitled as guarantor of the
Guaranteed Indebtedness.
8.4 No Impairment. The obligations of the Parent under this Article VIII
shall not be impaired by reason of any claim or waiver, release, surrender or
compromise with respect to the Subsidiary Borrower, and shall not be subject to
any defense or set-off by reason of the unenforceability, in whole or in part,
of the Guaranteed Indebtedness or any provision of this Agreement with respect
to the Subsidiary Borrower. The obligations of the Parent hereunder with respect
to its guaranty of the obligations of the Subsidiary Borrower hereunder shall
not be impaired by (a) any lack of validity or enforceability of this Agreement
or any other Loan Document with respect to the Subsidiary Borrower, (b) the
failure of any of the Banks or the Agent to assert any claim or demand or to
enforce any right or remedy against the Subsidiary Borrower or any other Person
hereunder or under the other Loan Documents or with respect to this Agreement or
the other
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Loan Documents, (c) any extension or renewal, in whole or in part, of this
Agreement or any other Loan Documents, (d) any rescission, waiver, release,
compromise, amendment or modification of, or any consent to departure from, any
of the terms or provisions of this Agreement or the other Loan Documents or any
agreement, (e) any failure by any Person in the performance of any obligation
with respect to this Agreement or any other Loan Documents, (f) any act by the
Agent or any Bank to obtain or retain a Lien upon or a security interest in any
property to secure any Guaranteed Indebtedness, or to release any security for
any of the Guaranteed Indebtedness, (g) any exchange, release or nonperfection
of any Lien, (h) any bankruptcy of the Subsidiary Borrower or any other Person,
or (i) any other act or omission which may or might in any manner vary the risk
of the Subsidiary Borrower, or which would otherwise operate as a discharge of
or other defense available to the Subsidiary Borrower, as a matter of law.
8.5 Waiver of Resort. The Parent agrees that this Article VIII constitutes
a guaranty of payment and not merely of collection and waives any right to
require that any resort be had by the Agent or any of the Banks to any security
held by it for the payment of the Guaranteed Indebtedness or to any balance or
any deposit account or credit on the books of the Agent or any Bank in favor of
the Subsidiary Borrower.
8.6 Reinstatement. The Parent agrees that this Article VIII shall continue
to be effective or be reinstated, as the case may be, if at any time any part of
any payment of principal of, or interest on, the Guaranteed Indebtedness is
stayed, rescinded or must otherwise be returned by any Bank or the Agent upon
the bankruptcy or reorganization of the Subsidiary Borrower or any other Person.
8.7 Payment. Upon the failure of the Subsidiary Borrower to pay any of the
Guaranteed Indebtedness when and as the same shall become due, whether at
maturity, by acceleration or otherwise, the Parent hereby promises to, and will,
immediately on demand by any Bank or the Agent, pay or cause to be paid to the
Banks or the Agent, as the case may be, an amount equal to the full amount of
the Guaranteed Indebtedness then due. All such payments shall be in the currency
in which the Guaranteed Indebtedness is denominated.
8.8 Subrogation, Waivers, etc. The Parent hereby agrees that, until such
time as all of the Guaranteed Obligations shall have been finally paid in full
in cash and performed in full, all Commitments shall have terminated, and this
guaranty shall have been discontinued, no payment made by or on account of the
Subsidiary Borrower pursuant to this Article VIII shall entitle the Parent, by
subrogation or otherwise, to any payment by the Subsidiary Borrower or from or
out of any property of the Subsidiary Borrower, and the Parent shall not
exercise any right or remedy against the Subsidiary Borrower or any property of
the Subsidiary Borrower by reason of any performance by the Parent of its
obligations under this Article VIII, including any claim or other rights which
it may now or hereafter acquire against the Subsidiary Borrower that arise from
the existence, payment, performance or enforcement of the guaranty under this
Article VIII, including any right of subrogation, reimbursement, exoneration,
contribution, indemnification, any right to participate in any claim or remedy
of the Banks or the Agent, as the case may be, against the Subsidiary Borrower
or any collateral now or hereafter pledged to the Banks, the Agent or any other
Person acting on behalf of the Banks by the Subsidiary Borrower, whether or not
such claim, remedy
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or right arises in equity, at law or under contract, directly or indirectly, is
for cash or other property or arises by set-off or in any other manner (as
payment or security on account of such claim or other rights). If any amount
shall be paid to the Parent in violation of the preceding sentence and the
Obligations shall not then have been paid in full, all Commitments shall not
have terminated, such amount shall be deemed to have been paid to the Parent for
the benefit of, and held in trust for the benefit of, the Banks or the Agent, as
applicable, and shall forthwith be paid to the Banks or the Agent, as
applicable. The Parent acknowledges that it has received and will receive direct
and indirect benefits from the financing arrangements contemplated by this
Agreement and the other Loan Documents and that the forbearance set forth in
this Section 8.8 is knowingly granted in contemplation of such benefits.
8.9 Delay, etc. No delay on the part of any of the Banks or the Agent in
exercising any rights under this Article VIII or failure to exercise the same
shall operate as a waiver of such rights. No notice to or demand on the Parent
shall be deemed to be a waiver of any obligation of the Subsidiary Borrower or
the right of the Banks or the Agent to take further action without notice or
demand as provided herein.
ARTICLE IX
THE AGENT
9.1 Appointment and Authorization. Each Bank hereby irrevocably (subject to
Section 9.9) appoints, designates and authorizes the Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agent.
9.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.3 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by either Borrower or any Subsidiary
or Affiliate
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of any Borrower, or any officer thereof, contained in this Agreement or in any
other Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of either Borrower or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Bank to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower or any of the Borrower's
Subsidiaries or Affiliates.
9.4 Reliance by Agent. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Banks as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Majority
Banks and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
9.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Banks, unless the Agent shall have received
written notice from a Bank or Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a "notice of
default". The Agent will notify the Banks of its receipt of any such notice. The
Agent shall take such action with respect to such Default or Event of Default as
may be requested by the Majority Banks in accordance with Article VIII;
provided, however, that unless and until the Agent has received any such
request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Banks.
9.6 Credit Decision. Each Bank acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it, and that no act by the
Agent hereinafter taken, including any review of the affairs of the Parent and
its Subsidiaries, shall be deemed to constitute any representation or warranty
by any Agent-Related Person to any Bank. Each Bank represents to the Agent that
it has, independently and without reliance upon any Agent-Related Person and
based on such documents and information as it has deemed appropriate, made its
own appraisal of
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and investigation into the business, prospects, operations, property, financial
and other condition and creditworthiness of the Parent and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Borrowers hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers. Except for notices, reports and other
documents expressly herein required to be furnished to the Banks by the Agent,
the Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of the Borrowers
which may come into the possession of any of the Agent-Related Persons.
9.7 Indemnification. Whether or not the transactions contemplated hereby
are consummated, the Banks shall indemnify upon demand the Agent-Related Persons
(to the extent not reimbursed by or on behalf of the Borrowers and without
limiting the obligation of the Borrowers to do so), pro rata, from and against
any and all liabilities indemnified by the Borrowers pursuant to Section 10.5;
provided, however, that no Bank shall be liable for the payment to the
Agent-Related Persons of any portion of such indemnified liabilities resulting
solely from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank shall reimburse the Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Agent is not reimbursed for such expenses by or on behalf of the
Borrowers. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
9.8 Agent in Individual Capacity. Bank of America and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Parent and its
Subsidiaries and Affiliates as though Bank of America were not the Agent
hereunder and without notice to or consent of the Banks. The Banks acknowledge
that, pursuant to such activities, Bank of America or its Affiliates may receive
information regarding the Borrowers or their Affiliates (including information
that may be subject to confidentiality obligations in favor of the Borrowers or
such Subsidiary) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Bank and
may exercise the same as though it were not the Agent, and the terms "Bank" and
"Banks" include Bank of America in its individual capacity.
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9.9 Successor Agent. The Agent may, and at the request of the Majority
Banks shall, resign as Agent upon 30 days' notice to the Banks. If the Agent
resigns under this Agreement, the Majority Banks shall appoint from among the
Banks a successor agent for the Banks which successor agent shall be approved by
the Parent. If no successor agent is appointed prior to the effective date of
the resignation of the Agent, the Agent may appoint, after consulting with the
Banks and the Parent, a successor agent from among the Banks. Upon the
acceptance of its appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article IX and
Sections 10.4 and 10.5 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date which is 30 days
following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Banks shall
perform all of the duties of the Agent hereunder until such time, if any, as the
Majority Banks appoint a successor agent as provided for above.
9.10. Withholding Tax. (a) If any Bank is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Bank claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Bank agrees with and in favor of the Agent, to deliver to
the Agent:
(i) if such Bank claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly completed
copies of IRS Form W-8 BEN on or before the payment of any interest in the
first calendar year and before the payment of any interest in each third
succeeding calendar year during which interest may be paid under this
Agreement;
(ii) if such Bank claims that interest paid under this Agreement is
exempt from United States withholding tax because it is effectively
connected with a United States trade or business of such Bank, two properly
completed and executed copies of IRS Form W-8ECI before the payment of any
interest is due in the first taxable year of such Bank and in each
succeeding taxable year of such Bank during which interest may be paid
under this Agreement,
(iii) if such Bank is a foreign partnership or other intermediary and
its partners claim an exemption from, or a reduction of, withholding tax
under a United States tax treaty or if its partners claim that interest
paid under this Agreement is exempt from United States withholding tax
because it is effectively connected with the conduct with a United States
trade or business, two properly completed and executed copies of IRS Form
W-8MY on or before the payment of any interest in the first calendar year
and before the payment of any interest in each third succeeding calendar
year during which interest may be paid under this Agreement; and
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(iv) such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form W-8BEN and such
Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Borrowers to such Bank, such Bank agrees
to notify the Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Borrowers to such Bank. To the
extent of such percentage amount, the Agent will treat such Bank's IRS Form
W-8BEN as no longer valid.
(c) If any Bank claiming exemption from United States withholding tax
by filing IRS Form W-8ECI with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of
the Borrowers to such Bank, such Bank agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed
by Sections 1441 and 1442 of the Code.
(d) If any Bank is a foreign partnership or other intermediary and its
partners claim exemption from, or reduction of, withholding tax under a
United States tax treaty by providing IRS Form W-8BEN or its partners claim
exemption from United States withholding tax by filing IRS Form W-8ECI, and
any of its partners sell, assign, grant a participation in, or otherwise
transfer all or part of the Obligations of any Borrower to such Bank, such
Bank agrees to notify the Agent of the percentage amount in which the
partners is no longer the beneficial owner of Obligations of any Borrower
to such Bank. To the extent of such percentage amount, the Agent will treat
such partner's IRS Form W-8BEN or W-8ECI as no longer valid.
(e) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such
Bank an amount equivalent to the applicable withholding tax after taking
into account such reduction. If the forms or other documentation required
by subsection (a) of this Section are not delivered to the Agent, then the
Agent may withhold from any interest payment to such Bank not providing
such forms or other documentation an amount equivalent to the applicable
withholding tax.
(f) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered, was not properly executed,
or because such Bank failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank shall
indemnify the Agent fully for all
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amounts paid, directly or indirectly, by the Agent as tax or otherwise,
including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Agent under this Section,
together with all costs and expenses (including Attorney Costs). The
obligation of the Banks under this subsection shall survive the payment of
all Obligations and the resignation or replacement of the Agent.
9.11 Documentation Agent; Syndication Agent. None of the Banks identified
on the facing page or signature pages of this Agreement as a "documentation
agent" or "syndication agent" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Banks as such. Without limiting the foregoing, none of the
Banks so identified as a "documentation agent" or "syndication agent" shall have
or be deemed to have any fiduciary relationship with any Bank. Each Bank
acknowledges that it has not relied, and will not rely, on any of the Banks so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
ARTICLE X
MISCELLANEOUS
10.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by a Borrower therefrom, shall be effective unless the same shall be
in writing and signed by the Majority Banks (or by the Agent at the written
request of the Majority Banks) and the Borrowers and acknowledged by the Agent,
and then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such waiver, amendment, or consent shall, unless in writing and signed by all
the Banks and the Borrowers and acknowledged by the Agent, do any of the
following:
(a) increase or extend the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to Section 7.2) except as contemplated by
Section 2.5(b);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts
due to the Banks (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or (subject to clause (ii) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks or any
of them to take any action hereunder;
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(e) release the Parent from its guaranty pursuant to Article VIII
hereof; or
(f) amend this Section or Section 2.13, or any provision herein
providing for consent or other action by all Banks;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document, and (ii) the Fee Letters may be amended,
or rights or privileges thereunder waived, in a writing executed by the parties
thereto.
10.2 Notices. (a) All notices, requests and other communications shall be
in writing (including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by facsimile (i)
shall be immediately confirmed by a telephone call to the recipient at the
number specified on Schedule 10.2, and (ii) shall be followed promptly by
delivery of a hard copy original thereof) and mailed, faxed or delivered, to the
address or facsimile number specified for notices on Schedule 10.2; or, as
directed to the Borrowers or the Agent, to such other address as shall be
designated by such party in a written notice to the other parties, and as
directed to any other party, at such other address as shall be designated by
such party in a written notice to the Borrowers and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by
facsimile machine, respectively, or if mailed, upon the third Business Day
after the date deposited into the U.S. mail, or if delivered, upon
delivery; except that notices pursuant to Article II or IX shall not be
effective until actually received by the Agent.
(c) Any agreement of the Agent and the Banks herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Borrowers. The Agent and the Banks shall be entitled to rely
on the authority of any Person purporting to be a Person authorized by a
Borrower to give such notice and the Agent and the Banks shall not have any
liability to the Borrowers or other Person on account of any action taken
or not taken by the Agent or the Banks in reliance upon such telephonic or
facsimile notice. The obligation of the Borrowers to repay the Loans shall
not be affected in any way or to any extent by any failure by the Agent and
the Banks to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Agent and the Banks of a confirmation which is
at variance with the terms understood by the Agent and the Banks to be
contained in the telephonic or facsimile notice.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege
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hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege.
10.4 Costs and Expenses. The Borrowers shall jointly and severally:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse Bank of America (including in its capacity as
Agent) within five Business Days after demand for all costs and expenses
incurred by Bank of America (including in its capacity as Agent) in
connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification to (in
each case, whether or not consummated), this Agreement, any Loan Document
and any other documents prepared in connection herewith or therewith, and
the consummation of the transactions contemplated hereby and thereby,
including reasonable Attorney Costs incurred by Bank of America (including
in its capacity as Agent) with respect thereto; and
(b) pay or reimburse the Agent, the Arranger and each Bank within five
Business Days after demand for all costs and expenses (including Attorney
Costs) incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement
or any other Loan Document during the existence of an Event of Default or
after acceleration of the Loans (including in connection with any "workout"
or restructuring regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding).
10.5 Indemnity. Whether or not the transactions contemplated hereby are
consummated, the Borrowers shall jointly and severally indemnify and hold
harmless the Agent, the Arranger, each Bank and each of their Affiliates and
their directors, officers, employees, advisors and agents (each, an "Indemnified
Party") from and against (and will reimburse each Indemnified Party as the same
are incurred) any and all losses, claims, damages, liabilities, and expenses
(including, without limitation, the reasonable fees and expenses of counsel and
the allocated cost of internal counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) any matters contemplated by this Agreement, any related
transaction or any use made or proposed to be made with the proceeds thereof
unless and only to the extent that, as to any Indemnified Party, it shall be
determined in a final nonappealable judgment by a court of competent
jurisdiction that such losses, claims, damages, liabilities or expenses resulted
primarily from the gross negligence or willful misconduct of such Indemnified
Party. Notwithstanding the foregoing, the Borrowers shall have no obligation to
any Indemnified Party in respect of losses, claims, damages, liabilities or
expenses arising from (a) disputes between Banks, the Agent and/or the Arranger
or (b) disputes between any Borrower and an Indemnified Party, with respect to
which such Borrower is the prevailing party unless such losses, claims, damages,
liabilities or expenses under this clause (b) arise from the negligence (but not
gross negligence or willful misconduct) of such Indemnified Party.
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10.6 Collateral. The Borrowers, or either Borrower, may at their option
provide collateral to secure the Obligations in whole or in part in form and
with collateral reasonably satisfactory to the Majority Banks. The Banks
acknowledge and agree that the Collateral listed on Schedule 10.6 is
satisfactory. Any collateral agent shall be deemed included in the definition of
"Agent" and have the benefit of Article IX.
10.7 Payments Set Aside. To the extent that a Borrower makes a payment to
the Agent or the Banks, or the Agent or the Banks exercise their right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any Insolvency Proceeding or otherwise, then (a)
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Bank severally agrees to pay to the Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Agent.
10.8 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrowers may not assign or transfer any
of their rights or obligations under this Agreement without the prior written
consent of the Agent and each Bank.
10.9 Assignments, Participations, etc. (a) Any Bank may, with the written
consent of the Borrowers at all times other than during the existence of an
Event of Default and the Agent, which consent of the Borrowers shall not be
unreasonably withheld, at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Borrowers or the Agent shall
be required in connection with any assignment and delegation by a Bank to an
Eligible Assignee that is an Affiliate of such Bank) (each an "Assignee") all,
or any ratable part of all, of the Loans, the Commitments and the other rights
and obligations of such Bank hereunder, in a minimum amount of $5,000,000;
provided, however, that the Borrowers and the Agent may continue to deal solely
and directly with such Bank in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Borrowers and the Agent by such Bank and the
Assignee; (ii) such Bank and its Assignee shall have delivered to the Borrower
and the Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment
and Acceptance") together with any Note or Notes subject to such assignment and
(iii) the assignor Bank or Assignee has paid to the Agent a processing fee in
the amount of $3,500.
(b) From and after the date that the Agent notifies the assignor Bank
that it has received (and provided its and the Borrowers', if applicable,
consent with respect to) an executed Assignment and Acceptance and payment
of the above-referenced processing fee, (i) the Assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, shall
have the rights and obligations of a Bank under the Loan Documents, and
(ii) the
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assignor Bank shall, to the extent that rights and obligations hereunder
and under the other Loan Documents have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent
that it has received an executed Assignment and Acceptance and payment of
the processing fee, (and provided that it and the Borrowers, if applicable,
consent to such assignment in accordance with Section 10.9(a)), the
Borrowers shall execute and deliver to the Agent, new Notes evidencing such
Assignee's assigned Loans and Commitment and, if the assignor Bank has
retained a portion of its Loans and its Commitment, replacement Notes in
the principal amount of the Loans retained by the assignor Bank (such Notes
to be in exchange for, but not in payment of, the Notes held by such Bank).
Immediately upon each Assignee's making its processing fee payment under
the Assignment and Acceptance, this Agreement shall be deemed to be amended
to the extent, but only to the extent, necessary to reflect the addition of
the Assignee and the resulting adjustment of the Commitments arising
therefrom. The Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Bank pro tanto.
(d) Any Bank, with notice to the Borrowers, may at any time sell to
one or more commercial banks or other Persons not Affiliates of the
Borrower (a "Participant") participating interests in any Loans, the
Commitment of that Bank and the other interests of that Bank (the
"originating Bank") hereunder and under the other Loan Documents; provided,
however, that (i) the originating Bank's obligations under this Agreement
shall remain unchanged, (ii) the originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the Borrowers
and the Agent shall continue to deal solely and directly with the
originating Bank in connection with the originating Bank's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Bank shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Loan Document, except
to the extent such amendment, consent or waiver would require unanimous
consent of the Banks as described in the first proviso to Section 10.1. In
the case of any such participation, the Participant shall be entitled to
the benefit of Sections 3.1, 3.3 and 10.5 as though it were also a Bank
hereunder, and not have any rights under this Agreement, or any of the
other Loan Documents, and all amounts payable by the Borrowers hereunder
shall be determined as if such Bank had not sold such participation; except
that, if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have
the right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this
Agreement.
(e) Notwithstanding any other provision in this Agreement, any Bank
may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Note
held by it in favor of any Federal Reserve Bank in
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accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR
ss.203.14, and such Federal Reserve Bank may enforce such pledge or
security interest in any manner permitted under applicable law.
10.10 Confidentiality. Each Bank agrees to take and to cause its Affiliates
to take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" or "secret" by
the Borrowers and provided to it by the Borrowers or any Subsidiary, or by the
Agent on such Borrower's or Subsidiary's behalf, under this Agreement or any
other Loan Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Loan Documents or in connection with other business now or
hereafter existing or contemplated with any Borrower or any Subsidiary; except
to the extent such information (i) was or becomes generally available to the
public other than as a result of disclosure by the Bank, or (ii) was or becomes
available on a non- confidential basis from a source other than any Borrower,
provided that such source is not bound by a confidentiality agreement with any
Borrower known to the Bank; provided, however, that any Bank may disclose such
information (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in connection with an
examination of such Bank by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Agent, any
Bank or their respective Affiliates may be party; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Loan Document; (F) to such Bank's independent auditors and other
professional advisors; (G) to any Participant or Assignee, actual or potential,
provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Banks hereunder; (H) as to any
Bank or its Affiliate, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which any Borrower or any
Subsidiary is party or is deemed party with such Bank or such Affiliate; and (I)
to its Affiliates which shall be bound by the terms of this Section 10.10.
10.11 Set-off. In addition to any rights and remedies of the Banks provided
by law, if an Event of Default exists or the Loans have been accelerated, each
Bank is authorized at any time and from time to time, without prior notice to
the Borrowers, any such notice being waived by the Borrowers 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 by, and other
indebtedness at any time owing by, such Bank to or for the credit or the account
of the Borrowers against any and all Obligations owing to such Bank, now or
hereafter existing, irrespective of whether or not the Agent or such Bank shall
have made demand under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. Each Bank agrees promptly to notify
the Borrowers and the Agent after any such set-off and application made by such
Bank; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
10.12 Automatic Debits of Fees. With respect to any fee, or any other cost
or expense (including Attorney Costs) due and payable to the Agent, Bank of
America or the Arranger under
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the Loan Documents, the Borrowers hereby irrevocably authorize Bank of America
to debit any deposit account of the applicable Borrower with Bank of America in
an amount such that the aggregate amount debited from all such deposit accounts
does not exceed such fee or other cost or expense. If there are insufficient
funds in such deposit accounts to cover the amount of the fee or other cost or
expense then due, such debits will be reversed (in whole or in part, in Bank of
America's sole discretion) and such amount not debited shall be deemed to be
unpaid. No such debit under this Section shall be deemed a set-off.
10.13 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
10.14 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.15 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.16 No Third Parties Benefitted. This Agreement is made and entered into
for the sole protection and legal benefit of the Borrowers, the Banks, the Agent
and the Agent-Related Persons, and their permitted successors and assigns, and
no other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Loan Documents.
10.17 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
ILLINOIS; PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS, THE
AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON- EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE BORROWERS, THE
AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH
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JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.
THE BORROWERS, THE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY ILLINOIS LAW.
10.18 Waiver of Jury Trial. THE BORROWERS, THE BANKS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWERS, THE
BANKS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.19 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Borrowers,
the Banks and the Agent, and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
THE JOHN NUVEEN COMPANY
By:
-----------------------------------
Name:
---------------------------------
Title:
-------------------------------
NUVEEN INVESTMENTS
By:
-----------------------------------
Name:
---------------------------------
Title:
-------------------------------
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BANK OF AMERICA, N.A.,
as Administrative Agent
By:
-----------------------------------
Name:
---------------------------------
Title:
-------------------------------
BANK OF AMERICA, N.A., as a Bank
By:
-----------------------------------
Name:
---------------------------------
Title:
-------------------------------
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CITICORP USA, INC., as Syndication Agent
and a Bank
By:
-----------------------------------
Name:
---------------------------------
Title:
-------------------------------
64
71
THE CHASE MANHATTAN BANK,
as Documentation Agent and a Bank
By:
-----------------------------------
Name:
---------------------------------
Title:
-------------------------------
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72
THE BANK OF NEW YORK,
as a Bank
By:
-----------------------------------
Name:
---------------------------------
Title:
-------------------------------
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73
BANK ONE, NA (Main Office Chicago),
as a Bank
By:
-----------------------------------
Name:
---------------------------------
Title:
-------------------------------
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SCHEDULE 1.1
PRICING GRID
Pricing Level I Pricing Level II Pricing Level III
Leverage Ratio less than 1.00 > or = to 1.00 > or = to 2.00
less than 2.00
Applicable Margin 0.28% 0.345% 0.430%
Facility Fee Rate 0.095% 0.105% 0.12%
Utilization Fee Rate 0.050% 0.075% 0.10%
Schedule 1.1, Page 1
75
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
Bank Commitment Pro Rata Share
- ---- ---------- --------------
Bank of America, N.A. $ 37,500,000 30%
The Chase Manhattan Bank $ 25,000,000 20%
The Bank of New York $ 25,000,000 20%
Citicorp USA, Inc. $ 25,000,000 20%
Bank One, NA $ 12,500,000 10%
Schedule 2.1, Page 1
76
SCHEDULE 5.9
SUBSIDIARIES AND INVESTMENTS
SUBSIDIARIES
SUBSIDIARY NAME JURISDICTION OF % OWNED BY THE JOHN
INCORPORATION NUVEEN COMPANY
1. Nuveen Investments Delaware 100%
2. Nuveen/Flagship Acquisition
Corporation Delaware 100%
3. Nuveen Senior Loan Asset
Management, Inc. Delaware 100%
4. Rittenhouse Financial Services, Inc. Delaware 85%
SUBSIDIARY NAME JURISDICTION OF % OWNED BY
INCORPORATION NUVEEN INVESTMENTS
1. Nuveen Advisory Corp. Delaware 100%
2. Nuveen Institutional Advisory Corp. Delaware 100%
SUBSIDIARY NAME JURISDICTION OF % OWNED BY NUVEEN/FLAGSHIP
INCORPORATION ACQUISITION CORPORATION
1. Nuveen Asset Management Inc. Delaware 100%
OTHER INVESTMENTS
NAME DESCRIPTION
Institutional Capital Corporation Investment of Nuveen Investments in
convertible preferred equity security
convertible into 20% of common equity.
Schedule 5.9, Page 1
77
SCHEDULE 5.10
ERISA
The Subsidiary Borrower or other Controlled Group member maintain only the
following Single Employer Plan:
Nuveen Investments Employees' Retirement Plan
Schedule 5.10, Page 1
78
SCHEDULE 10.2
LENDING OFFICES,
ADDRESSES FOR NOTICES
BANK OF AMERICA, N.A.,
as Administrative Agent and a Bank
Address for Notices:
231 South LaSalle Street
10th Floor
Chicago, IL 60697
Attention: Constance Perrone
Telephone: (312) 828-4355
Facsimile: (312) 987-0889
Domestic and Offshore Lending Office:
Agency Services
101 North Tryon Street
Charlotte, NC 28255
Attention: Herbert Boyd
Telephone: (704) 388-3225
Facsimile: (704) 409--0002
CITICORP USA, INC.,
as Syndication Agent and a Bank
Address for Notices:
399 Park Avenue
New York, NY 10043
Attention: Pierre Guigui
Telephone: (212) 559-2849
Facsimile: (212)
Schedule 10.2, Page 1
79
Domestic and Offshore Lending Office:
2 Penn Way
Suite 200
New Castle, DE
Attention: Sally Schoenleber
Telephone: (302) 894-6061
Facsimile: (302) 894-6120
THE CHASE MANHATTAN BANK,
as Documentation Agent and a Bank
Address for Notices:
1 Chase Plaza
21st Floor
New York, NY 10081
Attention: Therese Bechet
Telephone: (212) 552-7785
Facsimile: (212) 552-1118
Domestic and Offshore Lending Office:
1 Chase Plaza
21st Floor
New York, NY 10081
Attention: Sushil Patel
Telephone: (212) 552-7522
Facsimile: (212) 552-7655
THE BANK OF NEW YORK,
as a Bank
Address for Notices:
One Wall Street
19th Floor
New York, NY 10286
Attention: Patrick Miller
Telephone: (212) 635-7607
Facsimile: (212) 635-6348
Schedule 10.2, Page 2
80
Domestic and Offshore Lending Office:
One Wall Street
19th Floor
New York, NY 10286
Attention: Sally Persaud
Telephone: (212) 635-6959
Facsimile: (212) 635-7552
BANK ONE, NA (Main Office Chicago),
as a Bank
Address for Notices:
153 West 51st Street
New York, NY 10019
Attention: Patricia Yee
Telephone: (212) 373-1194
Facsimile: (212) 373-1180
Domestic and Offshore Lending Office:
1 Bank One Plaza
16th Floor
IL1-0159
Chicago, IL 60670
Attention: Vicki Kobierski
Telephone: (312) 732-5627
Facsimile: (312) 732-3537
Schedule 10.2, Page 3
81
SCHEDULE 10.6
Any personal property pledgeable by any Borrower under Rule 15c 3-1 or Rule
15c 3-3 of the SEC.
Schedule 10.6, Page 1
82
EXHIBIT A
NOTICE OF BORROWING
Date: , 2000
To: Bank of America, N.A. as Administrative Agent for the Banks parties to the
Three Year Revolving Credit Agreement dated as of___________, 2000 (as extended,
renewed, amended or restated from time to time, the "Credit Agreement") among
The John Nuveen Company, Nuveen Investments, certain Banks which are signatories
thereto, Bank of America, N.A., as Administrative Agent, Citicorp USA Inc., as
Syndication Agent and The Chase Manhattan Bank, as Documentation Agent.
Ladies and Gentlemen:
The undersigned, [The John Nuveen Company] ([Nuveen Investments]), refers
to the Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.3 of the
Credit Agreement, of the Borrowing specified below:
1. The Borrower is [The John Nuveen Company], [Nuveen Investments]
2. The Business Day of the proposed Borrowing is___________, 2000.
3. The aggregate amount of the proposed Borrowing is $___________.
4. The Borrowing is to be comprised of $______of [Base Rate] [Federal
Funds Rate] [Offshore Rate] Loans.
[5. The duration of the Interest Period for the Offshore Rate Loans
included in the Borrowing shall be _____ months].
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Borrowers contained in
Article V of the Credit Agreement are true and correct as though made on
and as of such date (except to the extent such representations and
warranties relate to an earlier date, in which case they are true and
correct as of such date);
Exhibit A, Page 1
83
(b) no Default or Event of Default has occurred and is continuing, or
would result from such proposed Borrowing; and
(c) The proposed Borrowing will not cause the aggregate principal
amount of all outstanding Loans to exceed the combined Commitments of the
Banks.
[THE JOHN NUVEEN COMPANY]
[NUVEEN INVESTMENTS]
By:
------------------------------
Title:
---------------------------
Exhibit A, Page 2
84
EXHIBIT B
NOTICE OF CONVERSION/CONTINUATION
Date:________________, 2000
To: Bank of America, N.A., as Administrative Agent for the Banks parties to the
Three Year Revolving Credit Agreement dated as of , 2000 (as extended,
renewed, amended or restated from time to time, the "Credit Agreement")
among The John Nuveen Company , Nuveen Investments, certain Banks which are
signatories thereto and Bank of America, N.A., as Administrative Agent,
Citicorp USA, Inc., as Syndication Agent and The Chase Manhattan Bank, as
Documentation Agent
Ladies and Gentlemen:
The undersigned, [The John Nuveen Company] [Nuveen Investments](the
"Borrower"), refers to the Credit Agreement, the terms defined therein being
used herein as therein defined, and hereby gives you notice irrevocably,
pursuant to Section 2.4 of the Credit Agreement, of the [conversion]
[continuation] of the Loans specified herein, that:
1. The Conversion/Continuation Date is_____________, 2000__.
2. The aggregate amount of the Loans to be [converted] [continued] is
$______________.
3. The Loans are to be [converted into] [continued as] [Federal Funds
Rate] [Offshore Rate] [Base Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the Loans
included in the [conversion] [continuation] shall be [_____months].
[THE JOHN NUVEEN COMPANY]
[NUVEEN INVESTMENTS]
By:
-------------------------
Title:
----------------------
Exhibit B, Page 1
85
EXHIBIT C
COMPLIANCE CERTIFICATE
Financial Statement Date:______________, 2000
Reference is made to that certain Three Year Revolving Credit Agreement
dated as of ______, 2000 (as extended, renewed, amended or restated from time to
time, the "Credit Agreement") among The John Nuveen Company, Nuveen Investments,
the several financial institutions from time to time parties to this Credit
Agreement and Bank of America, N.A., as Administrative Agent for the Banks,
Citicorp USA, Inc., as Syndication Agent and The Chase Manhattan Bank, as
Documentation Agent. Unless otherwise defined herein, capitalized terms used
herein have the respective meanings assigned to them in the Credit Agreement.
The undersigned hereby certifies as of the date hereof that he/she is the
____________________ of the Parent and that, as such, he/she is authorized to
execute and deliver this Certificate to the Banks and the Agent on the behalf
of the Parent and its Subsidiaries, and that:
1. The undersigned has reviewed and is familiar with the terms of the
Credit Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and conditions (financial or
otherwise) of the Parent and its Subsidiaries during the accounting period
covered by the attached financial statements.
2. To the best of the undersigned's knowledge, the Borrowers, during such
period, have observed, performed or satisfied all of its covenants and other
agreements, and satisfied every condition in the Credit Agreement to be
observed, performed or satisfied by the Borrowers, and the undersigned has no
knowledge of any Default or Event of Default.
4. The following financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
Exhibit C, Page 1
86
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of , 2000.
THE JOHN NUVEEN COMPANY
By:
---------------------------------
Title:
------------------------------
Exhibit C, Page 2
87
Schedule 1
SECTION 6.13 - SALES OF ASSETS
Asset Dispositions for period from _________ 2000 to date of determination:
(a) Permitted asset dispositions:
10% of consolidated total assets of the Parent and its Subsidiaries as
of the last day of preceding Fiscal Quarter* $_____________
(b) Actual asset dispositions for such period $_____________
*Note: must also demonstrate (to the extent calculable) that total asset
dispositions for such period do not involve Property which is responsible
for more than 10% of the consolidated net sales or 20% of the Net Income of
the Parent and its Subsidiaries for the 12-month period ending as of the
last day of the Fiscal Quarter next preceding the date of determination.
SECTION 6 .21.1 - MINIMUM NET WORTH
1. Required Net Worth: $360,000,000
____________
2. Actual Net Worth: $___________
SECTION 6 .21.2 - LEVERAGE RATIO
1. Maximum Leverage Ratio: 2.75 to 1
___________
2. Actual Leverage Ratio:
(a) Net Debt of the Parent and its Subsidiaries $___________
(c) Annual Operating Cash Flow (preceding four Fiscal Quarters) $___________
(c) Ratio of (a) to (b) ___________
SECTION 6.22 - SUBSIDIARY BORROWER NET CAPITAL RATIO
1. Minimum Net Capital Ratio 5.5%
___________
2. Actual Net Capital Ratio
(a) Net Capital $___________
(b) Aggregate Debit Items $___________
(c) Ratio of (a) to (b) ___________
Exhibit C, Page 3
88
EXHIBIT D-1
August 10, 2000
Bank of America, N.A.,
as Administrative Agent
231 South LaSalle Street
Chicago, Illinois 60697
and
Each of the Financial Institutions
identified on the attached Schedule I
Re: Three Year Revolving Credit Agreement (the "3 Year Credit Agreement")
and 364 Day Revolving Credit Agreement (the "364 Day Credit
Agreement"), both dated as of August 10, 2000 (collectively, the
"Credit Agreements") and entered into among The John Nuveen Company, a
Delaware corporation, ("Nuveen"), Nuveen Investments, a Delaware
corporation ("Nuveen Investments"; together with Nuveen, the
"Borrowers" or "Borrower"), the banks party thereto (the "Lenders"),
Citicorp USA, Inc., as Syndication Agent, The Chase Manhattan Bank, as
Documentation Agent and Bank of America, N.A., as
Administrative Agent.
Ladies and Gentlemen:
We have acted as special counsel to the Borrowers in connection with the
Credit Agreements. This opinion is delivered to you responsive to Section 4.1(d)
of the Credit Agreements. Capitalized terms used herein and not otherwise
defined have the meanings ascribed in the Credit Agreements. The Credit
Agreements and the Notes of the Borrowers delivered in connection therewith are
referred to herein as the "Loan Documents".
We have examined executed counterparts of the Credit Agreements and
originals of the Notes, if any. We also have examined originals, or copies
certified or otherwise identified to our satisfaction, of such agreements,
corporate records, instruments, certificates of public officials and corporate
officers and such matters of law as we deemed necessary for purposes of this
opinion. We have relied, without independent investigation, upon statements of
officers of the Borrowers and the representations and warranties of the
Borrowers set forth in the Credit Agreements as to the nature of each Borrower's
business, its intended use of the proceeds of Borrowings under the Credit
Exhibit D-1, Page 1
89
Agreements, the existence of any order, writ, judgment, decree, determination or
award that is binding upon the Borrowers, and as to pending or threatened
actions, suits, proceedings, governmental investigations or arbitrations. For
purposes of our opinions in paragraph 1, we have relied exclusively upon
certificates issued by a governmental authority in each relevant jurisdiction
and such opinions are not intended to provide any conclusion or assurance beyond
that conveyed by those certificates.
We have assumed the genuineness of all signatures, the legal capacity of
all individuals who have executed the Loan Documents and all other documents we
have reviewed, the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
copies. We also have assumed that the Credit Agreements have been duly
authorized, executed and delivered by each of the parties thereto (other than
the Borrowers) and are enforceable against such parties in accordance with their
terms. The term "actual knowledge" whenever it is used in this letter with
respect to our firm means conscious awareness on the date of this letter of
Dewey B. Crawford, Edward J. Tabaczyk and Charles J. Kolin, who are all of the
Gardner, Carton & Douglas attorneys who have given substantial attention to this
matter on behalf of the Borrowers.
Based upon the foregoing, and subject to the qualifications stated herein,
we are of the opinion that:
1. Each Borrower is a corporation validly existing and in good standing
under the laws of the State of Delaware. Nuveen is duly qualified, in good
standing and authorized to conduct business as a foreign corporation in the
State of Illinois. Nuveen Investments is duly qualified, in good standing and
authorized to conduct business as a foreign corporation under the name John
Nuveen and Co. Incorporated in Illinois and is in the process of changing its
name to Nuveen Investments in accordance with applicable Illinois law.
2. Each Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under each of the Loan Documents,
to own its assets and to carry on its business as presently conducted.
3. The execution, delivery and performance by each Borrower of the Loan
Documents to which it is a party do not (a) violate any law, rule or regulation
(including Regulations T, U and X of the Board of Governors of the Federal
Reserve System) which, in our experience, is normally applicable both to general
business corporations (giving due regard to the regulated business activities of
Nuveen Investments and to the unregulated nature of the business activities of
Nuveen) and to transactions of the type contemplated by the Loan Documents, or,
to our actual knowledge, any order, writ, judgment, decree, determination or
award that is presently in effect and binding on such Borrower or (b) conflict
with or result in a breach of, or constitute a default under, the certificate of
incorporation or by-laws of such Borrower.
4. Each of the Loan Documents to which it is a party has been duly
authorized, executed and delivered by such Borrower and constitutes the valid
and binding obligation of such Borrower,
Exhibit D-1, Page 2
90
enforceable against such Borrower in accordance with its terms, except to the
extent that enforcement thereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws of
general application relating to or affecting the enforcement of the rights of
creditors or by equitable principles, regardless of whether enforcement is
sought in a proceeding in equity or at law.
5. No authorization, consent, approval, license, qualification or formal
exemption from, or filing, declaration or registration with, any Federal or
Illinois State governmental agency or authority is required in connection with
the execution or delivery by the Borrowers of the Loan Documents or the
borrowings by the Borrowers thereunder.
6. To our actual knowledge, there is no action, suit, proceeding,
governmental investigation or arbitration pending or threatened against the
Borrowers before any court or arbitrator, any governmental or administrative
body, agency or official, or any self-regulatory organization which (a)
challenges the validity, or seeks to enjoin the performance of, any Loan
Document or (b) could reasonably be expected to have a Material Adverse Effect.
7. Neither Borrower is an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
8. Neither Borrower is a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
9. The rates of interest provided in the Credit Agreements do not violate
any laws of the State of Illinois relating to interest or usury.
This opinion is limited to the laws of the State of Illinois, the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America.
The foregoing opinions are subject to and qualified by the effect of any
requirement that the Agent or the Lenders take certain actions or make certain
determinations in a commercially reasonable manner and in good faith. Moreover,
we express no opinion as to the enforceability of (a) any waiver of the right to
a jury trial, (b) any provision requiring the payment of interest on interest,
(c) express or implicit waivers of broad or vaguely stated rights, unknown
future rights, defenses to obligations or rights granted by law, where such
waivers are against public policy or prohibited by law, or (d) indemnity and
contribution rights that may be against public policy.
This opinion speaks as of the time of its delivery on the date it bears. We
do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which we did not have actual knowledge at
that time, by reason of any change subsequent to that time in any law covered by
any of our opinions, or for any other reason.
This opinion is for the benefit of the Agent and the Lenders and their
permitted assignees in connection with the transactions contemplated by the Loan
Documents and may not be relied
Exhibit D-1, Page 3
91
upon by any other Person or for any other purpose, or delivered to any other
Person for any purpose, without our prior written consent.
Very truly yours,
Exhibit D-1, Page 4
92
SCHEDULE I
Bank of America, N.A.
231 South LaSalle Street
Chicago, Illinois 60697
Citicorp USA, Inc.
399 Park Avenue
New York, New York 10043
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
The Bank of New York
48 Wall Street
New York, New York 10015
Bank One, NA
Bank One Plaza
Chicago, Illinois 60670
Exhibit D-1, Page 5
93
EXHIBIT D-2
August 10, 2000
Bank of America, N.A.,
as Administrative Agent
231 South LaSalle Street
Chicago, Illinois 60697
and
Each of the Financial Institutions
identified on Schedule I hereto
Re: Three Year Revolving Credit Agreement (the "3 Year Credit Agreement")
and 364 Day Revolving Credit Agreement (the "364 Day Credit
Agreement"), both dated as of August 10, 2000 (collectively, the
"Credit Agreements") and entered into among The John Nuveen Company, a
Delaware corporation, ("Nuveen"), Nuveen Investments, a Delaware
corporation ("Nuveen Investments"; together with Nuveen, the
"Borrowers" or "Borrower"), the banks part y thereto (the "Lenders"),
Citicorp USA, Inc., as Syndication Agent, The Chase Manhattan Bank, as
Documentation Agent and Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of each of the Borrowers,
and have represented the Borrowers in connection with the Credit Agreements.
This opinion is delivered to you responsive to Section 4.1(d) of the Credit
Agreements. Capitalized terms used herein and not otherwise defined have the
meanings ascribed in the Credit Agreements. The Credit Agreements and the Notes
of the Borrowers delivered in connection therewith are referred to herein as the
"Loan Documents." The following subsidiaries of Nuveen are hereinafter
collectively referred to as the "Subsidiaries," with each referred to as a
"Subsidiary": Nuveen Investments; Nuveen/Flagship Acquisition Corporation, a
Delaware corporation; Nuveen Senior Loan Asset Management, Inc., a Delaware
corporation; Rittenhouse Financial Services, Inc., a Delaware corporation;
Nuveen Advisory Corp., a Delaware corporation; Nuveen Institutional Advisory
Corp., a Delaware corporation; and Nuveen Asset Management Inc., a Delaware
corporation.
Exhibit D-2, Page 1
94
I have examined executed counterparts of the Credit Agreements and
originals of the Notes, if any. I also have examined originals, or copies
certified or otherwise identified to my satisfaction, of such agreements,
corporate records, instruments, certificates of public officials and corporate
officers and such matters of law as I deemed necessary for purposes of this
opinion. For purposes of my opinions as to corporate existence, good standing
and qualification as a foreign corporation in paragraph 1, I have relied
exclusively upon certificates issued by a governmental authority in each
relevant jurisdiction and such opinions are not intended to provide any
conclusion or assurance beyond that conveyed by those certificates.
I have assumed the genuineness of all signatures, the legal capacity of all
individuals who have executed the Loan Documents and all other documents I have
reviewed, the authenticity of all documents submitted to me as originals and the
conformity to original documents of all documents submitted to me as copies.
Based upon the foregoing, and subject to the qualifications stated herein,
I am of the opinion that:
1. Each of the Borrowers and each Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Nuveen is duly qualified, in good standing and authorized to conduct
business as a foreign corporation in the jurisdictions specified in the attached
Schedule II. Nuveen Investments is duly qualified, in good standing and
authorized to conduct business as a foreign corporation under the name John
Nuveen & Co. Incorporated in the jurisdictions specified in the attached
Schedule II and is in the process of changing its name to Nuveen Investments in
accordance with applicable corporations law. Nuveen Investments is registered
with the SEC as a broker-dealer under the Securities Exchange Act of 1934, as
amended, and is a member of the NASD. Each Subsidiary other than Nuveen
Investments and Nuveen/Flagship Acquisition Corporation is registered with the
SEC as an investment adviser under the Advisers Act.
2. The execution, delivery and performance by each Borrower of the Loan
Documents to which is a party do not (a) violate any law, rule or regulation
(including Regulations T, U and X of the Board of Governors of the Federal
Reserve System) applicable to such Borrower or any Subsidiary or any order,
writ, judgment, decree, determination or award known to me that is presently in
effect and binding on such Borrower or any Subsidiary, (b) conflict with or
result in a breach of, or constitute a default under, the certificate of
incorporation or by-laws of such Borrower or any Subsidiary, (c) conflict with
or result in a breach of, or constitute a default under, or result in or require
the creation or imposition of any Lien on any of the properties now owned by
such Borrower or any Subsidiary, under any indenture, credit agreement, material
lease or other material agreement or instrument to which such Borrower or any
Subsidiary is a party or by which they or any or their property is bound.
Exhibit D-2, Page 2
95
3. No authorization, consent, approval, license, qualification or formal
exemption from, or filing, declaration or registration with, any Governmental
Authority, self-regulatory organization or securities exchange is required in
connection with the execution, delivery or performance by the Borrowers of the
Loan Documents.
4. There is no action, suit, proceeding, governmental investigation or
arbitration pending or, to my knowledge, overtly threatened against the
Borrowers or any Subsidiary or any of their respective material properties
before any court or arbitrator, any governmental or administrative body, agency
or official, or any self-regulatory organization which (a) challenges the
validity, or seeks to enjoin the performance of, any Loan Document or (b) could
reasonably be expected to have a Material Adverse Effect.
This opinion is limited to the laws of the State of Illinois, the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America.
This opinion speaks as of the time of its delivery on the date it bears. I
do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which I did not have actual knowledge at that
time, by reason of any change subsequent to that time in any law covered by any
of my opinions, or for any other reason.
This opinion is for the benefit of the Agent, the Lenders and their
permitted assignees in connection with the transactions contemplated by the Loan
Documents and may not be relied upon by any other Person, other than Gardner,
Carton & Douglas, or for any other purpose, or delivered to any other Person for
any purpose, without my prior written consent.
Very truly yours,
Allen Berkshire
Senior Vice President
and General Counsel
Exhibit D-2, Page 3
96
SCHEDULE I
Bank of America, N.A.
231 South LaSalle Street
Chicago, Illinois 60697
Citicorp USA, Inc.
399 Park Avenue
New York, New York 10043
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
The Bank of New York
48 Wall Street
New York, New York 10015
Bank One, NA
Bank One Plaza
Chicago, Illinois 60670
Exhibit D-2, Page 4
97
SCHEDULE II
FOREIGN QUALIFICATIONS
THE JOHN NUVEEN COMPANY NUVEEN/FLAGSHIP ACQUISITION CORPORATION
Illinois Delaware
JOHN NUVEEN & CO. INCORPORATED NUVEEN ADVISORY CORP.
Arizona Illinois
California
District of Columbia NUVEEN INSTITUTIONAL ADVISORY CORP.
Florida
Georgia Illinois
Illinois Missouri
Massachusetts North Dakota
New York
Ohio NUVEEN ASSET MANAGEMENT INC.
Pennsylvania
Texas Illinois
Washington Ohio
NUVEEN SENIOR LOAN ASSET MANAGEMENT, INC.
Illinois
RITTENHOUSE FINANCIAL SERVICES, INC.
Pennsylvania
Exhibit D-2, Page 5
98
EXHIBIT E
[FORM OF] ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and Acceptance")
dated as of __________, 2000__ is made between ______________________________
(the "Assignor") and __________________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Three Year Revolving Credit
Agreement dated as of _____________, 2000 (as amended, amended and restated,
modified, supplemented or renewed, the "Credit Agreement") among The John Nuveen
Company, Nuveen Investments, the several financial institutions from time to
time party thereto, and Bank of America , N.A., as Administrative Agent,
Citicorp USA, Inc., as Syndication Agent and The Chase Manhattan Bank, as
Documentation Agent. Any terms defined in the Credit Agreement and not defined
in this Assignment and Acceptance are used herein as defined in the Credit
Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has committed
to making Loans (the "Loans") to the Borrowers in an aggregate amount not to
exceed $__________ (the "Commitment");
WHEREAS, [the Assignor has made Loans in the aggregate principal amount of
$__________] [no Loans are outstanding under the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part of the] [all]
rights and obligations of the Assignor under the Credit Agreement in respect of
its Commitment, [together with a corresponding portion of each of its
outstanding Loans,] in an amount equal to $__________ (the "Assigned Amount") on
the terms and subject to the conditions set forth herein and the Assignee wishes
to accept assignment of such rights and to assume such obligations from the
Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
Exhibit E, Page 1
99
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance) __% (the "Assignee's Percentage
Share") of (A) the Commitment [and the Loans] of the Assignor and (B) all
related rights, benefits, obligations, liabilities and indemnities of the
Assignor under and in connection with the Credit Agreement and the Loan
Documents.
[If appropriate, add paragraph specifying payment to Assignor by
Assignee of outstanding principal of, accrued interest on, and fees with respect
to, Loans assigned.]
(b) With effect on and after the Effective Date (as defined in Section
5 hereof), the Assignee shall be a party to the Credit Agreement and succeed to
all of the rights and be obligated to perform all of the obligations of a Bank
under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification, with a Commitment in an
amount equal to the Assigned Amount. The Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank. It is the intent
of the parties hereto that the Commitment of the Assignor shall, as of the
Effective Date, be reduced by an amount equal to the Assigned Amount and the
Assignor shall relinquish its rights and be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by the
Assignee; provided, however, the Assignor shall not relinquish its rights under
Sections 10.4 and 10.5 of the Credit Agreement to the extent such rights relate
to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignee's Commitment will be $__________.
(d) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignor's Commitment will be $__________.
2. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $__________,
representing the Assignee's Pro Rata Share of the principal amount of all Loans.
Exhibit E, Page 2
100
(b) The [Assignor] [Assignee] further agrees to pay to the Agent a
processing fee in the amount specified in Section 10.9(a) of the Credit
Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective Date with
respect to the Commitment and Loans shall be for the account of the Assignor.
Any interest, fees and other payments accrued on and after the Effective Date
with respect to the Assigned Amount shall be for the account of the Assignee.
Each of the Assignor and the Assignee agrees that it will hold in trust for the
other party any interest, fees and other amounts which it may receive to which
the other party is entitled pursuant to the preceding sentence and pay to the
other party any such amounts which it may receive promptly upon receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements referred to in Section 6.1 of the Credit
Agreement, and such other documents and information as it has deemed appropriate
to make its own credit and legal analysis and decision to enter into this
Assignment and Acceptance; and (b) agrees that it will, independently and
without reliance upon the Assignor, the Agent or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit and legal decisions in taking or not taking
action under the Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective date for
this Assignment and Acceptance shall be __________, 2000 (the "Effective Date");
provided that the following conditions precedent have been satisfied on or
before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Borrowers and the Agent required for an
effective assignment of the Assigned Amount by the Assignor to the Assignee
under Section 10.9(a) of the Credit Agreement shall have been duly obtained and
shall be in full force and effect as of the Effective Date;
Exhibit E, Page 3
101
(iii) the Assignee shall pay to the Assignor all amounts due to
the Assignor under this Assignment and Acceptance;
(iv) the processing fee referred to in Section 2(b) hereof and in
Section 10.9(a) of the Credit Agreement shall have been paid to the Agent; and
(v) the Assignor shall have assigned and the Assignee shall have
assumed a percentage equal to the Assignee's Percentage Share of the rights and
obligations of the Assignor under the Credit Agreement (if such agreement
exists).
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Borrowers and the Agent for
acknowledgment by the Agent, a Notice of Assignment [substantially] in the form
attached hereto as Schedule 1.
[6. Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
(a) The Assignee hereby appoints and authorizes the Assignor to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the Banks pursuant to the terms of
the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Credit Agreement.]
7. Withholding Tax.
The Assignee (a) represents and warrants to the Banks, the Agent and the
Borrowers that under applicable law and treaties no tax will be required to be
withheld by any Bank with respect to any payments to be made to the Assignee
hereunder, (b) agrees to furnish (if it is organized under the laws of any
jurisdiction other than the United States or any State thereof) to the Agent and
the Borrowers prior to the time that the Agent or any Borrower is required to
make any payment of principal, interest or fees hereunder, duplicate executed
originals of either U.S. Internal Revenue Service Form W-8BEN, U.S. Internal
Revenue Service Form W-8ECI or U.S. Internal Revenue Service Form W-8INY(wherein
the Assignee claims entitlement to the benefits of a tax treaty that provides
for a complete exemption from U.S. federal income withholding tax on all
payments hereunder) and agrees to provide new Forms 4224 or 1001 upon the
expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments thereto, duly
executed and completed by the Assignee, and (c) agrees to comply with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption.
Exhibit E, Page 4
102
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any Lien or other adverse claim; (ii) it is duly
organized and existing and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance; and (iv)
this Assignment and Acceptance has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto. The
Assignor makes no representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or statements
of any Borrower, or the performance or observance by any Borrower, of any of
their respective obligations under the Credit Agreement or any other instrument
or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly organized
and existing and it has full power and authority to take, and has taken, all
action necessary to execute and deliver this Assignment and Acceptance and any
other documents required or permitted to be executed or delivered by it in
connection with this Assignment and Acceptance, and to fulfill its obligations
hereunder; (ii) no notices to, or consents, authorizations or approvals of, any
Person are required (other than any already given or obtained) for its due
execution, delivery and performance of this Assignment and Acceptance; and apart
from any agreements or undertakings or filings required by the Credit Agreement,
no further action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; (iii) this Assignment and
Acceptance has been duly executed and delivered by it and constitutes the legal,
valid and binding obligation of the Assignee, enforceable against the Assignee
in accordance
Exhibit E, Page 5
103
with the terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles; and (iv) it is
an Eligible Assignee.
9. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and deliver such
other instruments, and take such other action, as either party may reasonably
request in connection with the transactions contemplated by this Assignment and
Acceptance, including the delivery of any notices or other documents or
instruments to the Borrower or the Agent, which may be required in connection
with the assignment and assumption contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure or
delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Assignment and Acceptance shall be without prejudice to any
rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation, execution and
performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. The Assignor and the
Assignee each irrevocably submits to the non-exclusive jurisdiction of any State
or Federal court sitting in Illinois over any suit, action or proceeding arising
out of or relating to this Assignment and Acceptance and irrevocably agrees that
all claims in respect of such action or proceeding may be heard and determined
in such Illinois State or Federal court. Each party to this Assignment and
Acceptance hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding.
Exhibit E, Page 6
104
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY RELATED DOCUMENTS AND
AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER
ORAL OR WRITTEN).
[Other provisions to be added as may be negotiated between the
Assignor and the Assignee, provided that such provisions are not inconsistent
with the Credit Agreement.]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By:
----------------------------
Title:
-------------------------
[ASSIGNEE]
By:
---------------------------
Title:
------------------------
Exhibit E, Page 7
105
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, 19__
Bank of America, N.A.
as Administrative Agent
[address]
The John Nuveen Company
Nuveen Investments
[address]
Ladies and Gentlemen:
We refer to the Three Year Revolving Credit Agreement dated as of
_________, 2000 (as amended, amended and restated, modified, supplemented or
renewed from time to time the "Credit Agreement") among The John Nuveen Company,
Nuveen Investments, the Banks referred to therein and Bank of America, N.A., as
Administrative Agent, Citicorp USA, Inc., as Syndication Agent and The Chase
Manhattan Bank, as Documentation Agent. Terms defined in the Credit Agreement
are used herein as therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by __________________ (the "Assignor") to _______________ (the
"Assignee") of _____% of the right, title and interest of the Assignor in and to
the Credit Agreement (including, without limitation, the right, title and
interest of the Assignor in and to the Commitments of the Assignor and all
outstanding Loans made by the Assignor) pursuant to the Assignment and
Acceptance Agreement attached hereto (the "Assignment and Acceptance"). Before
giving effect to such assignment the Assignor's Commitment is $ ___________ and
the aggregate amount of its outstanding Loans is $_____________.
2. The Assignee agrees that, upon receiving the consent of the Agent and,
if applicable, the Borrowers to such assignment, the Assignee will be bound by
the terms of the Credit Agreement as fully and to the same extent as if the
Assignee were the Bank originally holding such interest in the Credit Agreement.
3. The following administrative details apply to the Assignee:
Exhibit E, Page 8
106
(A) Notice Address:
Assignee name:
---------------------
Address:
---------------------
---------------------
---------------------
Attention:
---------------------
Telephone:
---------------------
Telecopier:
---------------------
(B) Payment Instructions:
Account No.:
---------------------
At:
---------------------
---------------------
---------------------
Reference:
---------------------
Attention:
---------------------
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and Assignee contained in the Assignment and
Acceptance.
Exhibit E, Page 9
107
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Notice
of Assignment and Acceptance to be executed by their respective duly authorized
officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:
---------------------------
Title:
------------------------
[NAME OF ASSIGNEE]
By:
---------------------------
Title:
------------------------
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
THE JOHN NUVEEN COMPANY
By:
---------------------------
Title:
------------------------
NUVEEN INVESTMENTS
By:
---------------------------
Title:
------------------------
Exhibit E, Page 10
108
BANK OF AMERICA, N.A., as Administrative Agent
By:
--------------------------------
Its:
-------------------------------
Exhibit E, Page 11
109
EXHIBIT F
FORM OF PROMISSORY NOTE
$__________ _____________, 2000
FOR VALUE RECEIVED, the undersigned, [THE JOHN NUVEEN COMPANY] [NUVEEN
INVESTMENTS] a Delaware corporation (the "Borrower"), hereby promises to pay to
the order of _______________ (the "Bank") the principal sum of ______________
Dollars ($__________) or, if less, the aggregate unpaid principal amount of all
Loans made by the Bank to the Borrower under that certain Three Year Revolving
Credit Agreement, dated as of ______________, 2000 (such Three Year Revolving
Credit Agreement, as it may be amended, restated, supplemented or otherwise
modified from time to time, being hereinafter called the "Credit Agreement"),
among The John Nuveen Company, Nuveen Investments, the Bank, the other banks
parties thereto, Bank of America, N.A., as Administrative Agent, Citicorp USA,
Inc., as Syndication Agent and The Chase Manhattan Bank, as Documentation Agent
on the dates and in the amounts provided in the Credit Agreement. The Borrower
further promises to pay interest on the unpaid principal amount of the Loans
evidenced hereby from time to time at the rates, on the dates, and otherwise as
provided in the Credit Agreement.
The Bank is authorized to endorse the amount and the date on which each
Loan is made, the maturity date therefor and each payment of principal with
respect thereto on the schedules annexed hereto and made a part hereof, or on
continuations thereof which shall be attached hereto and made a part hereof;
provided, that any failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Borrower under the Credit Agreement and this Promissory Note (the "Note").
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
Exhibit F, Page 1
110
Terms defined in the Credit Agreement are used herein with their defined
meanings therein unless otherwise defined herein. This Note shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
Illinois applicable to contracts made and to be performed entirely within such
State.
[THE JOHN NUVEEN COMPANY]
[NUVEEN INVESTMENTS]
By:
------------------------------
Title:
----------------------------
Exhibit F, Page 2
111
Schedule A to Note
BASE RATE LOANS AND REPAYMENT OF BASE RATE LOANS
(2) (3)
(1) Amount of Base Amount of Base (4)
Date Rate Loan Rate Loan Repaid Notation Made By
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
____________ ____________ ____________ ____________
Exhibit F, Page 3
112
Schedule B to Note
OFFSHORE RATE LOANS AND REPAYMENT OF OFFSHORE RATE LOANS
(2) (3) (4)
Amount of Maturity Date Amount of (5)
(1) Offshore Rate of Offshore Offshore Rate Notation Made
Date Loan Rate Loan Loan Repaid By
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
____________ _____________ ____________ _____________ _____________
Exhibit F, Page 4
113
Schedule C to Note
FEDERAL FUNDS RATE LOANS AND REPAYMENT OF FEDERAL FUNDS RATE LOANS
(3)
(2) Amount of Federal
(1) Amount of Federal Funds Rate Loan (4)
Date Funds Rate Loan Repaid Notation Made By
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
_____________ _________________ _________________ ________________
Exhibit F, Page 5
114
EXHIBIT G
ACCESSION AGREEMENT
This Accession Agreement dated________________, 200_ to the Three year
Revolving Credit Agreement (the "Credit Agreement") dated as of
_______________________, 2000 among The John Nuveen Company, Nuveen Investments,
certain financial institutions, Bank of America, N.A., as the Administrative
Agent, Citcorp USA, Inc., as the Syndication Agent, and The Chase Manhattan
Bank, as the Documentation Agent.
W I T N E S S E T H
WHEREAS, the Credit Agreement provides for an increase of the aggregate
Commitments;
WHEREAS, [___________________________________] [the "Increasing Banks")]
wish to increase [its] [their] Commitment by $ _____________________________ and
[_______________________] [(the "New Banks") wish to extend [a] Commitment[s] of
[___________________], causing the aggregate Commitments to equal
$___________________ ;
NOW, THEREFORE, the Borrowers, the Agent [, the Increasing Banks] and (the
New Banks) agree as follows:
1. All capitalized terms used in this Accession Agreement shall have the
meanings set forth in the Credit Agreement unless otherwise defined or the
context otherwise requires. 2. The aggregate Commitments are hereby increased to
$_______________ .
3. Schedule 1.1 to the Credit Agreement is hereby amended to state as set
forth in the attached Schedule 1.1.
4. As provided in Section 2.5 of the Credit Agreement, the Borrowers agree
to reimburse each Bank for the amount of any loss or expense arising as a result
of the effectiveness of this Accession Agreement during an Interest Period and
the purchase and sale of portions of Loans upon such effectiveness.
[5. The New Banks shall be added as Banks party to the Agreement and shall
have the duties and rights of Banks therein.]
6. This Accession Agreement shall be governed by the internal laws of the
State of Illinois without regard to the conflicts of law provisions thereof.
7. As hereby supplemented, the Credit Agreement shall remain in full force
and effect.
Exhibit G, Page 1
115
IN WITNESS WHEREOF, the parties hereto have executed this Accession
Agreement this ____ day of_____________________, 200__.
BANK OF AMERICA, N.A.,
as Agent
By:
------------------------------
Title:
----------------------------
[Increasing Banks]
[New Banks]
THE JOHN NUVEEN COMPANY
By:
------------------------------
Title:
----------------------------
NUVEEN INVESTMENTS
By:
------------------------------
Title:
----------------------------
Exhibit G, Page 2
116
Schedule 2.1
COMMITMENTS AND PRO RATA SHARES
Bank Commitment Pro Rata Share
- ---- ---------- --------------
Exhibit G, Page 3