Exhibit 10.8
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NUVEEN INVESTMENTS, INC.
$300,000,000
4.22% Senior Notes
Due September 19, 2008
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NOTE PURCHASE AGREEMENT
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Dated as of September 19, 2003
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PPN: 67090F A* 7
TABLE OF CONTENTS
Section Page
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1. AUTHORIZATION OF NOTES................................................................................ 1
2. SALE AND PURCHASE OF NOTES............................................................................. 1
3. CLOSING................................................................................................ 2
4. CONDITIONS TO CLOSING.................................................................................. 2
4.1. Representations and Warranties................................................................ 2
4.2. Performance; No Default....................................................................... 2
4.3. Compliance Certificates....................................................................... 2
4.4. Opinions of Counsel........................................................................... 3
4.5. Purchase Permitted By Applicable Law, etc..................................................... 3
4.6. Sale of Other Notes........................................................................... 3
4.7. Payment of Special Counsel Fees............................................................... 3
4.8. Private Placement Number...................................................................... 3
4.9. Changes in Corporate Structure................................................................ 4
4.10. Proceedings and Documents..................................................................... 4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................................................... 4
5.1. Organization; Power and Authority............................................................. 4
5.2. Authorization, etc............................................................................ 4
5.3. Disclosure.................................................................................... 5
5.4. Organization and Ownership of Shares of Subsidiaries.......................................... 5
5.5. Financial Statements.......................................................................... 6
5.6. Compliance with Laws, Other Instruments, etc.................................................. 6
5.7. Governmental Authorizations, etc.............................................................. 6
5.8. Litigation; Observance of Statutes and Orders................................................. 6
5.9. Taxes......................................................................................... 7
5.10. Title to Property; Leases..................................................................... 7
5.11. Licenses, Permits, etc........................................................................ 7
5.12. Compliance with ERISA......................................................................... 7
5.13. Private Offering by the Company............................................................... 8
5.14. Use of Proceeds; Margin Regulations........................................................... 9
5.15. Existing Indebtedness......................................................................... 9
5.16. Foreign Assets Control Regulations, etc....................................................... 9
5.17. Status under Certain Statutes................................................................. 10
6. REPRESENTATIONS OF THE PURCHASERS...................................................................... 10
6.1. Purchase for Investment....................................................................... 10
6.2. Source of Funds............................................................................... 10
7. INFORMATION AS TO COMPANY.............................................................................. 12
7.1. Financial and Business Information............................................................ 12
7.2. Officer's Certificate......................................................................... 14
7.3. Inspection.................................................................................... 15
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8. PREPAYMENT OF THE NOTES................................................................................ 15
8.1. No Scheduled Prepayments...................................................................... 15
8.2. Optional Prepayments with Make-Whole Amount................................................... 16
8.3. Allocation of Partial Prepayments............................................................. 16
8.4. Maturity; Surrender, etc...................................................................... 16
8.5. Purchase of Notes............................................................................. 16
8.6. Make-Whole Amount............................................................................. 17
9. AFFIRMATIVE COVENANTS.................................................................................. 18
9.1. Compliance with Law........................................................................... 18
9.2. Insurance..................................................................................... 19
9.3. Maintenance of Properties..................................................................... 19
9.4. Payment of Taxes.............................................................................. 19
9.5. Corporate Existence, etc...................................................................... 19
9.6. Nature of Business............................................................................ 20
9.7. Ranking of Notes.............................................................................. 20
10. NEGATIVE COVENANTS..................................................................................... 20
10.1. Consolidated Net Worth........................................................................ 20
10.2. Consolidated Debt............................................................................. 20
10.3. Limitation on Subsidiary Indebtedness......................................................... 20
10.4. Liens......................................................................................... 21
10.5. Mergers, Consolidations, etc.................................................................. 23
10.6. Sale of Assets................................................................................ 23
10.7. Transactions with Affiliates.................................................................. 24
11. EVENTS OF DEFAULT...................................................................................... 25
12. REMEDIES ON DEFAULT, ETC............................................................................... 27
12.1. Acceleration.................................................................................. 27
12.2. Other Remedies................................................................................ 27
12.3. Rescission.................................................................................... 28
12.4. No Waivers or Election of Remedies, Expenses, etc............................................. 28
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.......................................................... 28
13.1. Registration of Notes......................................................................... 28
13.2. Transfer and Exchange of Notes................................................................ 29
13.3. Replacement of Notes.......................................................................... 29
14. PAYMENTS ON NOTES...................................................................................... 30
14.1. Place of Payment.............................................................................. 30
14.2. Home Office Payment........................................................................... 30
15. EXPENSES, ETC.......................................................................................... 30
15.1. Transaction Expenses.......................................................................... 30
15.2. Survival...................................................................................... 31
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16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT........................................... 31
17. AMENDMENT AND WAIVER................................................................................... 31
17.1. Requirements.................................................................................. 31
17.2. Solicitation of Holders of Notes.............................................................. 32
17.3. Binding Effect, etc........................................................................... 32
17.4. Notes held by Company, etc.................................................................... 33
18. NOTICES................................................................................................ 33
19. REPRODUCTION OF DOCUMENTS.............................................................................. 33
20. CONFIDENTIAL INFORMATION............................................................................... 34
21. SUBSTITUTION OF PURCHASER.............................................................................. 35
22. MISCELLANEOUS.......................................................................................... 35
22.1. Successors and Assigns........................................................................ 35
22.2. Payments Due on Non-Business Days............................................................. 35
22.3. Severability.................................................................................. 36
22.4. Construction.................................................................................. 36
22.5. Counterparts.................................................................................. 36
22.6. Jurisdiction; Waiver of Jury Trial............................................................ 36
22.7. Governing Law................................................................................. 36
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries and Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Licenses, Permits, etc.
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Indebtedness
SCHEDULE 10.3 -- Indebtedness of Subsidiaries
SCHEDULE 10.4 -- Liens
EXHIBIT 1 -- Form of Senior Note
EXHIBIT 4.4(a) -- Form of Opinion of Counsel for the Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel to the Purchasers
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NUVEEN INVESTMENTS, INC.
333 West Wacker Drive
Chicago, IL 60606
(312) 917-7700
Fax: (312) 917-7952
$300,000,000
4.22% Senior Notes, due September 19, 2008
Dated as of September 19, 2003
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
NUVEEN INVESTMENTS, INC., a Delaware corporation (the
"Company"), agrees with you as follows:
1. AUTHORIZATION OF NOTES.
The Company has authorized the issue and sale of $300,000,000
aggregate principal amount of its 4.22% Senior Notes due September 19, 2008 (the
"Notes", such term to include any such Notes issued in substitution therefor
pursuant to Section 13). The Notes shall be substantially in the form set out in
Exhibit 1, with such changes therefrom, if any, as may be approved by you, the
Other Purchasers and the Company. Certain capitalized terms used in this
Agreement are defined in Schedule B; references to a "Schedule" or an "Exhibit"
are, unless otherwise specified, to a Schedule or an Exhibit attached to this
Agreement. The Notes will be unsecured and will rank pari passu with the
Company's Indebtedness to banks under the Credit Agreements and with all other
senior unsecured Indebtedness of the Company.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the
Company will issue and sell to you and each of the other purchasers named in
Schedule A (the "Other Purchasers"), and you and the Other Purchasers will
purchase from the Company, at the Closing provided for in Section 3, Notes in
the principal amount specified opposite your names in Schedule A at the purchase
price of 100% of the principal amount thereof. Your obligation hereunder and the
obligations of the Other Purchasers are several and not joint obligations and
you shall have no
obligation and no liability to any Person for the performance or non-performance
by any Other Purchaser hereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and
the Other Purchasers shall occur at the offices of Gardner Carton & Douglas, 191
North Wacker Drive, Suite 3700, Chicago, Illinois 60606-1698, at 9:00 a.m.,
Chicago time, at a closing (the "Closing") on September 19, 2003 or on such
other Business Day thereafter on or prior to September 30, 2003 as may be agreed
upon by the Company and you and the Other Purchasers. At the Closing the Company
will deliver to you the Notes to be purchased by you in the form of a single
Note (or such greater number of Notes in denominations of at least $100,000 as
you may request) dated the date of the Closing and registered in your name (or
in the name of your nominee), against delivery by you to the Company or its
order of immediately available funds in the amount of the purchase price
therefor by wire transfer of immediately available funds for the account of the
Company to account number 5760674 at Bank One, Chicago, ABA #071000013. If at
the Closing the Company fails to tender such Notes to you as provided above in
this Section 3, or any of the conditions specified in Section 4 shall not have
been fulfilled to your satisfaction, you shall, at your election, be relieved of
all further obligations under this Agreement, without thereby waiving any rights
you may have by reason of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold
to you at the Closing is subject to the fulfillment to your satisfaction, prior
to or at the Closing, of the following conditions:
4.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company in this
Agreement shall be correct when made and at the time of the Closing.
4.2. PERFORMANCE; NO DEFAULT.
The Company shall have performed and complied with all
agreements and conditions contained in this Agreement required to be performed
or complied with by it prior to or at the Closing and after giving effect to the
issue and sale of the Notes (and the application of the proceeds thereof as
contemplated by Schedule 5.14) no Default or Event of Default shall have
occurred and be continuing.
4.3. COMPLIANCE CERTIFICATES.
(a) Officer's Certificate. The Company shall have
delivered to you an Officer's Certificate, dated the date of the
Closing, certifying that the conditions specified in Sections 4.1, 4.2
and 4.9 have been fulfilled.
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(b) Secretary's Certificate. The Company shall have
delivered to you a certificate certifying as to the resolutions
attached thereto and other corporate proceedings relating to the
authorization, execution and delivery of the Notes and the Agreement.
4.4. OPINIONS OF COUNSEL.
You shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing (a) from Alan G. Berkshire,
General Counsel of the Company, and Winston & Strawn LLP, special counsel for
the Company, covering the matters set forth in Exhibit 4.4(a) and covering such
other matters incident to the transactions contemplated hereby as you or your
counsel may reasonably request (and the Company hereby instructs its counsel to
deliver such opinion to you) and (b) from Gardner Carton & Douglas LLP, your
special counsel in connection with such transactions, substantially in the form
set forth in Exhibit 4.4(b) and covering such other matters incident to such
transactions as you may reasonably request.
4.5. PURCHASE PERMITTED BY APPLICABLE LAW, ETC.
On the date of the Closing, your purchase of Notes shall (i)
be permitted by the laws and regulations of each jurisdiction to which you are
subject, without recourse to provisions (such as Section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (ii) not
violate any applicable law or regulation (including, without limitation,
Regulation U, T or X of the Board of Governors of the Federal Reserve System)
and (iii) not subject you to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not in effect on
the date hereof. If requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may reasonably specify
to enable you to determine whether such purchase is so permitted.
4.6. SALE OF OTHER NOTES.
Contemporaneously with the Closing the Company shall sell to
the Other Purchasers and the Other Purchasers shall purchase the Notes to be
purchased by them at the Closing as specified in Schedule A.
4.7. PAYMENT OF SPECIAL COUNSEL FEES.
Without limiting the provisions of Section 15.1, the Company
shall have paid on or before the Closing the fees, charges and disbursements of
your special counsel referred to in Section 4.4, to the extent reflected in a
statement of such counsel rendered to the Company at least one Business Day
prior to the Closing.
4.8. PRIVATE PLACEMENT NUMBER.
A Private Placement Number issued by Standard & Poor's CUSIP
Service Bureau (in cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners) shall have been obtained by
Gardner Carton & Douglas for the Notes.
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4.9. CHANGES IN CORPORATE STRUCTURE.
Except as specified in Schedule 4.9, the Company shall not
have changed its jurisdiction of incorporation or been a party to any merger or
consolidation and shall not have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
4.10. PROCEEDINGS AND DOCUMENTS.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory to you and your special
counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
5.1. ORGANIZATION; POWER AND AUTHORITY.
The Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation, and is
duly qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Company has the corporate power and authority to
own or hold under lease the properties it purports to own or hold under lease,
to transact the business it transacts and proposes to transact, to execute and
deliver this Agreement and the Notes and to perform the provisions hereof and
thereof. The Company possesses 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, other than where the failure to possess such licenses,
registrations or authorizations would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.2. AUTHORIZATION, ETC.
This Agreement and the Notes have been duly authorized by all
necessary corporate action on the part of the Company, and this Agreement
constitutes, and upon execution and delivery thereof each Note will constitute,
a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
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5.3. DISCLOSURE.
The Company, through the Agents, has delivered to you and each
Other Purchaser a copy of a Private Placement Memorandum, dated July 2003 (the
"Memorandum"), relating to the transactions contemplated hereby. Except as
disclosed in Schedule 5.3, this Agreement, the Memorandum, the documents,
certificates or other writings identified in Schedule 5.3 and the financial
statements listed in Schedule 5.5, taken as a whole, do not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading in light of the circumstances under
which they were made. Except as disclosed in the Memorandum or as expressly
described in Schedule 5.3, or in one of the documents, certificates or other
writings identified therein, or in the financial statements listed in Schedule
5.5, since December 31, 2002, there has been no change in the financial
condition, operations, business or assets of the Company or any Subsidiary,
except changes that individually or in the aggregate would not reasonably be
expected to have a Material Adverse Effect.
5.4. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES.
(a) Schedule 5.4 is (except as noted therein) a complete
and correct list of the Company's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its capital
stock or similar equity interests outstanding owned by the Company and
each other Subsidiary.
(b) All of the outstanding shares of capital stock or
similar equity interests of each Subsidiary shown in Schedule 5.4 as
being owned by the Company and its Subsidiaries have been validly
issued, are fully paid and nonassessable and are owned by the Company
or another Subsidiary free and clear of any Lien (except as otherwise
disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization,
and is duly qualified as a foreign corporation or other legal entity
and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to
which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each such Subsidiary has the corporate or
other power and authority to own or hold under lease the properties it
purports to own or hold under lease and to transact the business it
transacts and proposes to transact. Each Subsidiary possesses 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, other than where the failure to possess such
licenses, registrations or authorizations would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
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5.5. FINANCIAL STATEMENTS.
The Company has delivered to you and each Other Purchaser
copies of the financial statements of the Company and its Subsidiaries listed on
Schedule 5.5. All of said financial statements (including in each case the
related schedules and notes) fairly present in all material respects the
consolidated financial condition of the Company and its Subsidiaries as of the
respective dates specified in such Schedule and the consolidated results of
their operations and cash flows for the respective periods so specified and have
been prepared in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto (subject, in the case
of any interim financial statements, to normal year-end adjustments).
5.6. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Company of this
Agreement and the Notes will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of the Company or any Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other Material agreement or instrument to which the Company or
any Subsidiary is bound or by which the Company or any Subsidiary or any of
their respective properties may be bound or affected, (ii) conflict with or
result in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental Authority
applicable to the Company or any Subsidiary or (iii) violate any provision of
any statute or other rule or regulation of any Governmental Authority applicable
to the Company or any Subsidiary.
5.7. GOVERNMENTAL AUTHORIZATIONS, ETC.
No consent, approval or authorization of, or registration,
filing or declaration with, any Governmental Authority is required in connection
with the execution, delivery or performance by the Company of this Agreement or
the Notes.
5.8. LITIGATION; OBSERVANCE OF STATUTES AND ORDERS.
(a) Except as disclosed in Schedule 5.8, there are no
actions, suits or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company or any Subsidiary
or any property of the Company or any Subsidiary in any court or before
any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default
under any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including Environmental Laws and the USA
Patriot Act) of any Governmental Authority, which default or violation,
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect.
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5.9. TAXES.
The Company and its Subsidiaries have filed all income tax
returns that are required to have been filed in any jurisdiction, and have paid
all taxes, shown to be due and payable on such returns and all other taxes and
assessments payable by them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, except for any
tax returns, taxes and assessments (i) the amount of which or penalty for
failure to file is not individually or in the aggregate Material or (ii) the
amount, applicability or validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which the Company or a
Subsidiary, as the case may be, has established adequate reserves in accordance
with GAAP. The federal income tax liabilities of the Company and its
Subsidiaries have been determined by the Internal Revenue Service and paid for
all fiscal years up to and including the fiscal year ended December 31, 1997.
5.10. TITLE TO PROPERTY; LEASES.
The Company and its Subsidiaries have good and sufficient
title to their respective Material properties, including all such properties
reflected in the most recent audited balance sheet referred to in Section 5.5 or
purported to have been acquired by the Company or any Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in
each case free and clear of Liens prohibited by this Agreement, except for those
defects in title and Liens that, individually or in the aggregate, would not
have a Material Adverse Effect. All Material leases are valid and subsisting and
are in full force and effect in all material respects.
5.11. LICENSES, PERMITS, ETC.
Except as disclosed in Schedule 5.11, the Company and its
Subsidiaries own or possess all licenses, permits, franchises, authorizations,
patents, copyrights, service marks, trademarks and trade names, or rights
thereto, that are Material, without known conflict with the rights of others,
except for those conflicts that, individually or in the aggregate, would not
have a Material Adverse Effect.
5.12. COMPLIANCE WITH ERISA.
(a) The Company and each ERISA Affiliate have operated
and administered each Plan in compliance with all applicable laws
except for such instances of noncompliance as have not resulted in and
would not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any ERISA Affiliate has incurred any
liability pursuant to Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee benefit plans (as
defined in Section 3 of ERISA), and no event, transaction or condition
has occurred or exists that would reasonably be expected to result in
the incurrence of any such liability by the Company or any ERISA
Affiliate, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, in either
case pursuant to Title I or IV of ERISA or to such penalty or
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excise tax provisions or to Section 401(a)(29) or 412 of the Code,
other than such liabilities or Liens as would not be individually or in
the aggregate Material.
(b) The present value of the aggregate benefit
liabilities under each of the Plans that are subject to the funding
requirements of Section 412 of the Code (other than Multiemployer
Plans), determined as of the end of such Plan's most recently ended
plan year for which an actuarial valuation has been timely performed
(so as to permit proper compliance with the funding requirements of
Code Section 412 and the reporting requirements of the Code and ERISA),
and on the basis of the actuarial assumptions specified for funding
purposes in such Plan's most recent actuarial valuation report, did not
exceed the aggregate current value of the assets of such Plan allocable
to such benefit liabilities by an amount that, individually or in the
aggregate, is Material. The term "benefit liabilities" has the meaning
specified in Section 4001 of ERISA and the terms "current value" and
"present value" have the meaning specified in Section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not
incurred withdrawal liabilities (and are not subject to contingent
withdrawal liabilities) under Section 4201 or 4204 of ERISA in respect
of Multiemployer Plans that individually or in the aggregate are
Material.
(d) The expected postretirement benefit obligation
(determined as of the last day of the Company's most recently ended
fiscal year in accordance with Financial Accounting Standards Board
Statement No. 106, without regard to liabilities attributable to
continuation coverage mandated by Section 4980B of the Code) of the
Company and its Subsidiaries is not Material or has been disclosed in
the most recent audited consolidated financial statements of the
Company and its Subsidiaries.
(e) The execution and delivery of this Agreement and the
issuance and sale of the Notes hereunder will not involve any
transaction that is subject to the prohibitions of Section 406 of ERISA
or in connection with which a tax would be imposed pursuant to Section
4975(c)(1)(A)-(D) of the Code. The representation in the first sentence
of this Section 5.12(e) is made in reliance upon and subject to the
accuracy of your representation in Section 6.2 as to the sources of the
funds used to pay the purchase price of the Notes to be purchased by
you.
5.13. PRIVATE OFFERING BY THE COMPANY.
Neither the Company nor anyone acting on its behalf has
offered the Notes or any similar securities for sale to, or solicited any offer
to buy any of the same from, or otherwise approached or negotiated in respect
thereof with, any Person other than you, the Other Purchasers and not more than
105 other Institutional Investors, each of which has been offered Notes at a
private sale for investment. Neither the Company nor anyone acting on its behalf
has taken, or will take, any action that would subject the issuance or sale of
the Notes to the registration requirements of Section 5 of the Securities Act.
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5.14. USE OF PROCEEDS; MARGIN REGULATIONS.
The Company will apply the proceeds of the sale of the Notes
for general corporate purposes and to repay Indebtedness as set forth in
Schedule 5.14. No part of the proceeds from the sale of the Notes will be used,
directly or indirectly, for the purpose of buying or carrying any margin stock
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading
in any securities under such circumstances as to involve the Company in a
violation of Regulation X of said Board (12 CFR 224) or to involve any broker or
dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock
does not constitute more than 5% of the value of the consolidated assets of the
Company and its Subsidiaries, and the Company does not have any present
intention that margin stock will constitute more than 5% of the value of such
assets. As used in this Section, the terms "margin stock" and "purpose of buying
or carrying" shall have the meanings assigned to them in said Regulation U.
5.15. EXISTING INDEBTEDNESS.
Except as described therein, Schedule 5.15 sets forth a
complete and correct list of all outstanding Indebtedness of the Company and its
Subsidiaries as of June 30, 2003, since which date there has been no Material
change in the amounts, interest rates, sinking funds, installment payments or
maturities of the Indebtedness of the Company or its Subsidiaries. Neither the
Company nor any Subsidiary is in default and no waiver of default is currently
in effect, in the payment of any principal or interest on any Indebtedness of
the Company or such Subsidiary and no event or condition exists with respect to
any Indebtedness of the Company or any Subsidiary that is outstanding in an
aggregate principal amount in excess of $10,000,000 and that would permit (or
that with notice or the lapse of time, or both, would permit) one or more
Persons to cause such Indebtedness to become due and payable before its stated
maturity or before its regularly scheduled dates of payment.
5.16. FOREIGN ASSETS CONTROL REGULATIONS, ETC.
Neither the sale of the Notes by the Company hereunder nor its
use of the proceeds thereof will violate (a) the Trading with the Enemy Act, as
amended, (b) any of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto, (c) the Anti-Terrorism Order or
(d) the United States Foreign Corrupt Practices Act of 1997, as amended. Without
limiting the foregoing, neither the Company nor any Subsidiary (i) is a blocked
person described in Section 1 of the Anti-Terrorism Order or (ii) engages in any
dealings or transactions, or is otherwise associated, with any such person.
5.17. STATUS UNDER CERTAIN STATUTES.
Neither the Company nor any Subsidiary is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, nor are any of them subject
to regulation under the Public
9
Utility Holding Company Act of 1935, as amended, the Interstate Commerce Act, as
amended by the ICC Termination Act, as amended, or the Federal Power Act, as
amended.
6. REPRESENTATIONS OF THE PURCHASERS.
6.1. PURCHASE FOR INVESTMENT.
You represent that you are purchasing the Notes for your own
account or for one or more separate accounts maintained by you or for the
account of one or more pension or trust funds and not with a view to the
distribution thereof, provided that the disposition of your or their property
shall at all times be within your or their control. You understand that the
Notes have not been registered under the Securities Act and may be resold only
if registered pursuant to the provisions of the Securities Act or if an
exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that the
Company is not required to register the Notes. You represent that you are an
"accredited investor" as defined under Rule 501(a) of the Securities Act and
that, in connection with your purchase of Notes, you have had an opportunity to
request and obtain such information as you have required regarding the Company
and its Subsidiaries.
6.2. SOURCE OF FUNDS.
You represent that at least one of the following statements is
an accurate representation as to each source of funds (a "Source") to be used by
you to pay the purchase price of the Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general account"
(as the term is defined in the United States Department of Labor's
Prohibited Transaction Exemption ("PTE") 95-60) in respect of which the
reserves and liabilities (as defined by the annual statement for life
insurance companies approved by the National Association of Insurance
Commissioners (the "NAIC Annual Statement")) for the general account
contract(s) held by or on behalf of any employee benefit plan together
with the amount of the reserves and liabilities for the general account
contract(s) held by or on behalf of any other employee benefit plans
maintained by the same employer (or affiliate thereof as defined in PTE
95-60) or by the same employee organization in the general account do
not exceed 10% of the total reserves and liabilities of the general
account (exclusive of separate account liabilities) plus surplus as set
forth in the NAIC Annual Statement filed with such Purchaser's state of
domicile; or
(b) the Source is a separate account that is maintained
solely in connection with such Purchaser's fixed contractual
obligations under which the amounts payable, or credited, to any
employee benefit plan (or its related trust) that has any interest in
such separate account (or to any participant or beneficiary of such
plan (including any annuitant)) are not affected in any manner by the
investment performance of the separate account; or
10
(c) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29,
1990), or (ii) a bank collective investment fund, within the meaning of
PTE 91-38 (issued July 12, 1991) and, except as you have disclosed to
the Company in writing pursuant to this clause (c), no employee benefit
plan or group of plans maintained by the same employer or employee
organization beneficially owns more than 10% of all assets allocated to
such pooled separate account or collective investment fund; or
(d) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of PTE 84-14 (the "QPAM Exemption"))
managed by a "qualified professional asset manager" or "QPAM" (within
the meaning of Part V of the QPAM Exemption), no employee benefit
plan's assets that are included in such investment fund, when combined
with the assets of all other employee benefit plans established or
maintained by the same employer or by an affiliate (within the meaning
of Section V(c)(1) of the QPAM Exemption) of such employer or by the
same employee organization and managed by such QPAM, exceed 20% of the
total client assets managed by such QPAM, the conditions of Part I(c)
and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a
person controlling or controlled by the QPAM (applying the definition
of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more
interest in the Company and (i) the identity of such QPAM and (ii) the
names of all employee benefit plans whose assets are included in such
investment fund have been disclosed to the Company in writing pursuant
to this clause (d); or
(e) the Source constitutes assets of a "plan(s)" (within
the meaning of Section IV of PTE 96-23 (the "INHAM Exemption")) managed
by an "in-house asset manager" or "INHAM" (within the meaning of Part
IV of the INHAM exemption), the conditions of Part I(a), (g) and (h) of
the INHAM Exemption are satisfied, neither the INHAM nor a person
controlling or controlled by the INHAM (applying the definition of
"control" in Section IV(h) of the INHAM Exemption) owns a 5% or more
interest in the Company and (i) the identity of such INHAM and (ii) the
name(s) of the employee benefit plan(s) whose assets constitute the
Source have been disclosed to the Company in writing pursuant to this
clause (e); or
(f) the Source is a governmental plan; or
(g) the Source is one or more employee benefit plans, or
a separate account or trust fund comprised of one or more employee
benefit plans, and the purchase of the Notes will not result in a
nonexempt prohibited transaction under Section 4975 of the Code or
Section 406 of ERISA or any similar state law applicable to the plan or
plans; or
(h) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA,
Section 4975 of the Code and any provision of any state law similar to
Section 4975 of the Code and Section 406 of ERISA.
11
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan" and "separate account" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. FINANCIAL AND BUSINESS INFORMATION
The Company will deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- within 45 days (or such other
shorter period within which Quarterly Reports on Form 10-Q are required
to be timely filed with the Securities and Exchange Commission,
including any extension permitted by Rule 12b-25 of the Exchange Act)
after the end of each quarterly fiscal period in each fiscal year of
the Company (other than the last quarterly fiscal period of each such
fiscal year), duplicate copies of,
(i) a consolidated balance sheet of the Company
and its Subsidiaries as at the end of such quarter,
(ii) consolidated statements of income of the
Company and its Subsidiaries for such quarter and (in the case
of the second and third quarters) for the portion of the
fiscal year ending with such quarter, and
(iii) consolidated statements of cash flows and
changes in common stockholders' equity of the Company and its
Subsidiaries for such quarter or (in the case of the second
and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial
condition of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified
above of copies of the Company's Quarterly Report on Form 10-Q prepared
in compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(a);
(b) Annual Statements -- within 90 days (or such other
shorter period within which Annual Reports on Form 10-K are required to
be timely filed with the Securities and Exchange Commission, including
any extension permitted by Rule 12b-25 of the Exchange Act) after the
end of each fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company
and its Subsidiaries, as at the end of such year, and
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(ii) consolidated statements of income, changes
in common stockholders' equity and cash flows of the Company
and its Subsidiaries for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in
all material respects, the financial condition of the companies being
reported upon and their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made
in accordance with generally accepted auditing standards, and that such
audit provides a reasonable basis for such opinion in the
circumstances, provided that the delivery within the time period
specified above of the Company's Annual Report on Form 10-K for such
fiscal year (together with the Company's annual report to shareholders,
if any, prepared pursuant to Rule 14a-3 under the Exchange Act)
prepared in accordance with the requirements therefor and filed with
the Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic report
(other than Financial and Operational Combined Uniform Single (FOCUS)
Reports and Form 17-H Risk Assessment Reports of Nuveen Investments
LLC), each registration statement (other than a Registration Statement
on Form S-8) that shall have become effective (without exhibits except
as expressly requested by such holder), and each final prospectus and
all amendments (other than one relating solely to employee benefit
plans) thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission;
(d) Notice of Default or Event of Default -- promptly,
and in any event within ten days after a Responsible Officer becomes
aware of the existence of any Default or Event of Default, a written
notice specifying the nature and period of existence thereof and what
action the Company is taking or proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within
five days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Company or an ERISA Affiliate proposes to take
with respect thereto:
(i) with respect to any Plan, any reportable
event, as defined in Section 4043(b) of ERISA and the
regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date
hereof; or
13
(ii) the taking by the PBGC of steps to
institute, or the threatening by the PBGC of the institution
of, proceedings under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer,
any Plan, or the receipt by the Company or any ERISA Affiliate
of a notice from a Multiemployer Plan that such action has
been taken by the PBGC with respect to such Multiemployer
Plan; or
(iii) any event, transaction or condition that
would result in the incurrence of any liability by the Company
or any ERISA Affiliate pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to
employee benefit plans, or in the imposition of any Lien on
any of the rights, properties or assets of the Company or any
ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then
existing, would reasonably be expected to have a Material
Adverse Effect; and
(f) Requested Information -- with reasonable promptness,
such other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Company or
any of its Subsidiaries or relating to the ability of the Company to
perform its obligations hereunder and under the Notes as from time to
time may be reasonably requested by any such holder of Notes.
Documents required to be delivered pursuant to this Section 7.1 (to the extent
any such documents are included in materials otherwise filed with the Securities
and Exchange Commission) may be delivered electronically and, if so delivered,
shall be deemed to have been delivered on the date on which the Company posts
such documents, or provides a link thereto, on the Company's website on the
Internet (www.nuveen.com); provided that: (i) the Company shall deliver paper
copies of such documents to any holder of Notes that requests the Company to
deliver such paper copies until a written request to cease delivering paper
copies is given by such holder; and (ii) on such date the Company shall notify
(which may be by facsimile or electronic mail) each holder of the Notes of the
posting of any such documents.
7.2. OFFICER'S CERTIFICATE.
Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a
certificate of a Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether the
Company was in compliance with the requirements of Sections 10.1, 10.2,
10.3, 10.4 and 10.6 during the quarterly or annual period covered by
the statements then being furnished (including with respect to each
such Section, where applicable, the calculations of the maximum or
minimum amount, ratio or percentage, as the case may be, permissible
under the terms of such Sections, and the calculation of the amount,
ratio or percentage then in existence); and
14
(b) Event of Default -- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall not
have disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if any such
condition or event existed or exists (including any such event or
condition resulting from the failure of the Company or any Subsidiary
to comply with any Environmental Law), specifying the nature and period
of existence thereof and what action the Company shall have taken or
proposes to take with respect thereto.
7.3. INSPECTION.
The Company shall permit the representatives of each holder of
Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Company, to visit the principal executive office of the Company,
to discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and, with the consent of the
Company (which consent will not be unreasonably withheld), to visit the
other offices and properties of the Company and each Subsidiary, all at
such reasonable times and as often as may be reasonably requested in
writing; and
(b) Default -- if a Default or Event of Default then
exists, at the expense of the Company, to visit and inspect any of the
offices or properties of the Company or any Subsidiary, to examine all
their respective books of account, records, reports and other papers,
to make copies and extracts therefrom, and to discuss their respective
affairs, finances, and accounts with their respective officers and
independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and
accounts of the Company and its Subsidiaries), all at such times and as
often as may be requested.
8. PREPAYMENT OF THE NOTES.
8.1. NO SCHEDULED PREPAYMENTS.
No regularly scheduled prepayments are due on the Notes prior
to their stated maturity.
8.2. OPTIONAL PREPAYMENTS WITH MAKE-WHOLE AMOUNT.
The Company may, at its option, upon notice as provided below,
prepay at any time all, or from time to time any part of, the Notes in an amount
not less than $5,000,000 in the aggregate in the case of a partial prepayment,
at 100% of the principal amount so prepaid, plus the Make-Whole Amount
determined for the prepayment date with respect to such principal
15
amount. The Company will give each holder of Notes written notice of each
optional prepayment under this Section 8.2 not less than 30 days and not more
than 60 days prior to the date fixed for such prepayment. Each such notice shall
specify such date, the aggregate principal amount of the Notes to be prepaid on
such date, the principal amount of each Note held by such holder to be prepaid
(determined in accordance with Section 8.3), and the interest to be paid on the
prepayment date with respect to such principal amount being prepaid, and shall
be accompanied by a certificate of a Senior Financial Officer as to the
estimated Make-Whole Amount due in connection with such prepayment (calculated
as if the date of such notice were the date of the prepayment), setting forth
the details of such computation. Two Business Days prior to such prepayment, the
Company shall deliver to each holder of Notes a certificate of a Senior
Financial Officer specifying the calculation of such Make-Whole Amount as of the
specified prepayment date.
8.3. ALLOCATION OF PARTIAL PREPAYMENTS.
In the case of each partial prepayment of the Notes, the
principal amount of the Notes to be prepaid shall be allocated among all of the
Notes at the time outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts thereof not theretofore called for
prepayment.
8.4. MATURITY; SURRENDER, ETC.
In the case of each prepayment of Notes pursuant to this
Section 8, the principal amount of each Note to be prepaid shall mature and
become due and payable on the date fixed for such prepayment, together with
interest on such principal amount accrued to such date and the applicable
Make-Whole Amount, if any. From and after such date, unless the Company shall
fail to pay such principal amount when so due and payable, together with the
interest and Make-Whole Amount, if any, as aforesaid, interest on such principal
amount shall cease to accrue. Any Note paid or prepaid in full shall be
surrendered to the Company and canceled and shall not be reissued, and no Note
shall be issued in lieu of any prepaid principal amount of any Note.
8.5. PURCHASE OF NOTES.
The Company will not and will not permit any Affiliate to
purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of
the outstanding Notes except (a) upon the payment or prepayment of the Notes in
accordance with the terms of this Agreement and the Notes or (b) pursuant to an
offer to purchase made by the Company or an Affiliate pro rata to the holders of
all Notes at the time outstanding upon the same terms and conditions. Any such
offer shall provide each holder with sufficient information to enable it to make
an informed decision with respect to such offer, and shall remain open for at
least 20 Business Days. If the holders of more than 25% of the principal amount
of the Notes then outstanding accept such offer, the Company shall promptly
notify the remaining holders of such fact and the expiration date for the
acceptance by holders of Notes of such offer shall be extended by the number of
days necessary to give each such remaining holder at least 10 Business Days from
its receipt of such notice to accept such offer. The Company will promptly
cancel all Notes acquired by it or any Affiliate
16
pursuant to any payment, prepayment or purchase of Notes pursuant to any
provision of this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
8.6. MAKE-WHOLE AMOUNT.
The term "MAKE-WHOLE AMOUNT" means, with respect to any Note,
an amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal, provided that the Make-Whole Amount may in no
event be less than zero. For the purposes of determining the Make-Whole Amount,
the following terms have the following meanings:
"CALLED PRINCIPAL" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"DISCOUNTED VALUE" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"REINVESTMENT YIELD" means, with respect to the Called
Principal of any Note, .50% over the yield to maturity implied by (i)
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as the "PX1 Screen" on the
Bloomberg Financial Market Service (or such other display as may
replace the PX1 Screen on the Bloomberg Financial Market Service) for
actively traded U.S. Treasury securities having a maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement
Date, or (ii) if such yields are not reported as of such time or the
yields reported as of such time are not ascertainable, the Treasury
Constant Maturity Series Yields reported, for the latest day for which
such yields have been so reported as of the second Business Day
preceding the Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the maturity closest to and
greater than the Remaining Average Life and (2) the actively traded
U.S. Treasury security with the maturity closest to and less than the
Remaining Average Life.
"REMAINING AVERAGE LIFE" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such
17
Called Principal into (ii) the sum of the products obtained by
multiplying (a) the principal component of each Remaining Scheduled
Payment with respect to such Called Principal by (b) the number of
years (calculated to the nearest one-twelfth year) that will elapse
between the Settlement Date with respect to such Called Principal and
the scheduled due date of such Remaining Scheduled Payment.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1.
"SETTLEMENT DATE" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
9.1. COMPLIANCE WITH LAW.
The Company will, and will cause each of its Subsidiaries to,
comply with all laws, ordinances or governmental rules or regulations to which
each of them is subject, including, without limitation, Environmental Laws, and
will obtain and maintain in effect all licenses, certificates, permits,
franchises and other governmental authorizations necessary to the ownership of
their respective properties or to the conduct of their respective businesses, in
each case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations would not reasonably be expected, individually or in
the aggregate, to have a materially adverse effect on the business, operations,
financial condition or assets of the Company and its Subsidiaries taken as a
whole.
9.2. INSURANCE.
The Company will, and will cause each of its Subsidiaries to,
maintain, with financially sound and reputable insurers, insurance with respect
to their respective properties and businesses against such casualties and
contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of entities of
established reputations engaged in the same or a similar business and similarly
situated.
18
9.3. MAINTENANCE OF PROPERTIES.
The Company will, and will cause each of its Subsidiaries to,
maintain and keep, or cause to be maintained and kept, their respective
properties in good repair, working order and condition (other than ordinary wear
and tear), so that the business carried on in connection therewith may be
properly conducted at all times, provided that this Section shall not prevent
the Company or any Subsidiary from discontinuing the operation and the
maintenance of any of its properties if such discontinuance is desirable in the
conduct of its business and the Company has concluded that such discontinuance
would not, individually or in the aggregate, have a materially adverse effect on
the business, operations, financial condition or assets of the Company and its
Subsidiaries taken as a whole.
9.4. PAYMENT OF TAXES.
The Company will, and will cause each of its Subsidiaries to,
file all income tax or similar tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
payable by any of them, to the extent such taxes and assessments have become due
and payable and before they have become delinquent, provided that neither the
Company nor any Subsidiary need file any such return or pay any such tax or
assessment if (i) the amount, applicability or validity thereof is contested by
the Company or such Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (ii) the nonfiling of all such returns and the nonpayment
of all such taxes and assessments in the aggregate would not reasonably be
expected to have a materially adverse effect on the business, operations,
financial condition or assets of the Company and its Subsidiaries, taken as a
whole.
9.5. CORPORATE EXISTENCE, ETC.
Subject to Sections 10.5 and 10.6, the Company will at all
times preserve and keep in full force and effect its corporate existence.
Subject to Sections 10.5 and 10.6, the Company will at all times preserve and
keep in full force and effect the corporate existence of each of its
Subsidiaries (unless merged into the Company or a Wholly Owned Subsidiary) and
all rights and franchises of the Company and its Subsidiaries unless, in the
good faith judgment of the Company, the termination of or failure to preserve
and keep in full force and effect a particular corporate existence, right or
franchise would not, individually or in the aggregate, have a materially adverse
effect on the business, operations, financial condition or assets of the Company
and its Subsidiaries taken as a whole.
9.6. NATURE OF BUSINESS.
The Company and its Subsidiaries, taken as a whole, will
continue to be engaged primarily in the investment management business or
businesses or activities reasonably related, ancillary or complimentary thereto.
19
9.7. RANKING OF NOTES.
The Notes and the Company's obligations under this Agreement
will rank at least pari passu with all of the Company's outstanding unsecured
senior Indebtedness.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
10.1. CONSOLIDATED NET WORTH.
The Company will not permit Consolidated Net Worth to be less
than $300,000,000 at any time.
10.2. CONSOLIDATED DEBT.
The Company will not permit the ratio of Consolidated Debt (as
of the last day of the most recently completed fiscal quarter) to Consolidated
EBITDA (for the Company's then most recently completed four fiscal quarters) to
be greater than 3.0 to 1.0 at any time.
10.3. LIMITATION ON SUBSIDIARY INDEBTEDNESS.
The Company will not at any time permit any Subsidiary,
directly or indirectly, to create, incur, assume, guarantee, have outstanding,
or otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness other than:
(a) Indebtedness outstanding (or available under a
committed line of credit) on the date hereof and disclosed on Schedule
10.3 and any extension, renewal or refunding thereof, provided that the
principal amount of Indebtedness outstanding (or available under a
committed line of credit) at the time of such extension, renewal or
refunding is not increased;
(b) Indebtedness outstanding (or available under a
committed line of credit) at the time such Subsidiary becomes a
Subsidiary and any extension, renewal or refunding thereof, provided
that the principal amount outstanding (or available under a committed
line of credit) at the time of such extension, renewal or refunding is
not increased, and provided further that (i) such Indebtedness was not
incurred in contemplation of such Subsidiary becoming a Subsidiary, and
(ii) at the time of such acquisition and after giving effect thereto no
Default or Event of Default shall exist;
(c) Indebtedness owed to the Company or another Wholly
Owned Subsidiary;
(d) Indebtedness of a Subsidiary that has entered into a
Guaranty of the Company's obligations under the Notes and this
Agreement (i) satisfactory in form and substance to Required Holders
and (ii) as to which Guaranty the holders of outstanding
20
Notes have received an opinion of independent counsel, in form and
substance satisfactory to them, as to the validity and enforceability
of such Guaranty;
(e) Indebtedness of Nuveen Investments, LLC incurred in
connection with the purchase of securities in the ordinary course of
its business and maturing not more than 10 Business Days after the date
of incurrence;
(f) Indebtedness representing the sale of securities
under an agreement to repurchase;
(g) Rate Hedging Obligations;
(h) unsecured Indebtedness to finance advanced sales
commissions, provided that the aggregate principal amount of such
Indebtedness does not at any time exceed the amount of such advanced
sales commissions;
(i) contingent pay-out and similar obligations relating
to acquisitions; and
(j) Indebtedness not otherwise permitted by the preceding
clauses (a) through (i), provided that immediately before and after
giving effect thereto and to the application of proceeds thereof,
(i) no Default or Event of Default exists, and
(ii) Priority Debt does not exceed 20% of
Consolidated Net Worth.
10.4. LIENS.
The Company will not, and will not permit any Subsidiary to,
permit to exist, create, assume or incur, directly or indirectly, any Lien on
its properties or assets, whether now owned or hereafter acquired (unless it
makes, or causes to be made, effective provision whereby the Notes will be
equally and ratably secured with any and all other obligations thereby secured,
such security to be pursuant to an agreement, including an intercreditor
agreement, satisfactory in form and substance to the Required Holders), except:
(a) Liens for taxes, assessments or governmental charges
or levies not then due and delinquent or the nonpayment of which is
permitted by Section 9.4;
(b) any attachment or judgment Lien, unless the judgment
it secures has not, within 60 days after the entry thereof, been
discharged or execution thereof stayed pending appeal, or has not been
discharged within 60 days after the expiration of any such stay;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including landlords', lessors',
carriers', operators', warehousemen's, mechanics', materialmen's and
other similar Liens) and Liens to secure the performance of bids,
tenders, leases or trade contracts, or to secure statutory obligations
(including
21
obligations under workers compensation, unemployment insurance, old age
pensions and other social security or retirement legislation), surety
or appeal bonds or other Liens of like general nature incurred in the
ordinary course of business and not in connection with the borrowing of
money, which do not in the aggregate materially impair the use of such
property in the operation of the business of the Company and its
Subsidiaries taken as a whole or the value of such property for the
purposes of such business;
(d) encumbrances in the nature of leases, subleases,
zoning restrictions, easements, rights of way and other rights and
restrictions of record on the use of real property and defects in title
arising or incurred in the ordinary course of business, which,
individually and in the aggregate, do not materially impair the use or
value of the property or assets subject thereto or which relate only to
assets that in the aggregate are not Material;
(e) Liens existing on property or assets of the Company
or other Subsidiary as of the date of this Agreement that are described
in Schedule 10.4;
(f) Liens securing Indebtedness of a Subsidiary to the
Company or to another Wholly Owned Subsidiary;
(g) Liens securing Indebtedness of a Subsidiary permitted
by Section 10.3(e) or Liens securing Indebtedness representing the sale
of securities under an agreement to repurchase or Liens securing Rate
Hedging Obligations;
(h) Liens (i) existing on property at the time of its
acquisition by the Company or a Subsidiary and not created in
contemplation thereof, whether or not the Indebtedness secured by such
Lien is assumed by the Company or a Subsidiary; or (ii) on property
created contemporaneously with its acquisition or within 120 days of
the acquisition or completion of construction or development thereof to
secure or provide for all or a portion of the purchase price or cost of
the acquisition, construction or development of such property after the
date of Closing; or (iii) existing on property of a Person at the time
such Person is merged or consolidated with, or becomes a Subsidiary of,
or substantially all of its assets are acquired by, the Company or a
Subsidiary and not created in contemplation thereof; provided that in
the case of clauses (i), (ii) and (iii) such Liens do not extend to
additional property of the Company or any Subsidiary (other than
property that is an improvement to or is acquired for specific use in
connection with the subject property) and that the aggregate principal
amount of Indebtedness secured by each such Lien does not exceed the
fair market value of the property subject thereto;
(i) Liens resulting from extensions, renewals or
replacements of Liens permitted by paragraphs (e) and (h), provided
that (i) there is no increase in the principal amount or decrease in
maturity of the Indebtedness secured thereby at the time of such
extension, renewal or replacement, (ii) any new Lien attaches only to
the same property theretofore subject to such earlier Lien and (iii)
immediately after such extension, renewal or replacement no Default or
Event of Default would exist; and
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(j) Liens securing Indebtedness not otherwise permitted
by paragraphs (a) through (i) of this Section 10.4, provided that, at
the time of creation, assumption or incurrence thereof and immediately
after giving effect thereto and to the application of the proceeds
therefrom, Priority Debt does not exceed 20% of Consolidated Net Worth.
10.5. MERGERS, CONSOLIDATIONS, ETC.
The Company will not consolidate with or merge with any other
Person or convey, transfer, sell or lease all or substantially all of its assets
in a single transaction or series of transactions to any Person except that the
Company may consolidate or merge with any other Person or convey, transfer, sell
or lease all or substantially all of its assets in a single transaction or
series of transactions to any Person, provided that:
(a) the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by conveyance,
transfer, sale or lease all or substantially all of the assets of the
Company as an entirety, as the case may be, is a solvent corporation,
general partnership, limited partnership or limited liability company
organized and existing under the laws of the United States or any state
thereof (including the District of Columbia), and, if the Company is
not such survivor or Person, such survivor or Person shall have
executed and delivered to each holder of any Notes its assumption of
the due and punctual performance and observance of each covenant and
condition of this Agreement and the Notes; and
(b) after giving effect to such transaction, no Default
or Event of Default shall exist.
No such conveyance, transfer, sale or lease of all or substantially all of the
assets of the Company shall have the effect of releasing the Company or any
successor entity that shall theretofore have become such in the manner
prescribed in this Section 10.5 from its liability under this Agreement or the
Notes.
10.6. SALE OF ASSETS.
Except as permitted by Section 10.5, the Company will not, and
will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose
of, including by way of merger (collectively a "Disposition"), any assets,
including capital stock of Subsidiaries, in one or a series of transactions, to
any Person, other than:
(a) Dispositions in the ordinary course of business,
including (i) sales of securities in the ordinary course of business
and (ii) sales at fair value of advance sales commissions to a third
party without recourse to the Company or any of its Subsidiaries in
order to effect a securitization of such sales commissions;
(b) Dispositions by a Subsidiary to the Company or a
Wholly Owned Subsidiary; or
23
(c) Dispositions not otherwise permitted by clauses (a)
or (b) of this Section 10.6, provided that the aggregate net book value
of all assets so disposed of in any fiscal year pursuant to this
Section 10.6(c) does not exceed 15% of Consolidated Total Assets as of
the end of the immediately preceding fiscal year.
Notwithstanding the foregoing, the Company may, or may permit any Subsidiary to,
make a Disposition and the assets subject to such Disposition shall not be
subject to or included in the foregoing limitation and computation contained in
clause (c) of the preceding sentence to the extent that the net proceeds from
such Disposition are within 365 days of such Disposition (A) reinvested in
assets of a similar nature of at least equivalent value to be used in the
existing business of the Company or such Subsidiary, and/or (B) applied to the
payment or prepayment of the Notes or any other outstanding Indebtedness of the
Company or any Subsidiary ranking pari passu with or senior to the Notes (other
than Indebtedness owing to the Company, any Subsidiary or any Affiliate or in
respect of any revolving credit or similar credit facility providing the Company
or any Subsidiary with the right to obtain loans or other extensions of credit
from time to time, except to the extent that in connection with such payment of
Indebtedness the availability of credit under such credit facility is
permanently reduced by an amount not less than the amount of such proceeds
applied to the payment of such Indebtedness). Any prepayment of Notes pursuant
to this Section 10.6 shall be in accordance with Sections 8.2 and 8.3 without
regard to the minimum prepayment requirements of Section 8.2 if such proceeds
are less than such minimum.
10.7. TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any Subsidiary to,
enter into directly or indirectly any Material transaction or Material group of
related transactions (including the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except upon fair and reasonable
terms no less favorable to the Company or such Subsidiary than it would obtain
in a comparable arm's-length transaction with a Person not an Affiliate.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following
conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal
or Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest
on any Note for more than five Business Days after the same becomes due
and payable; or
(c) the Company defaults in the performance of or
compliance with any term contained in Sections 10.1 through 10.6; or
24
(d) the Company defaults in the performance of or
compliance with any term contained herein (other than those referred to
in paragraphs (a), (b) and (c) of this Section 11) and such default is
not remedied within 30 days after the earlier of (i) a Responsible
Officer obtaining actual knowledge of such default and (ii) the Company
receiving written notice of such default from any holder of a Note; or
(e) any representation or warranty made in writing by or
on behalf of the Company or by any officer of the Company in this
Agreement or in any writing furnished in connection with the
transactions contemplated hereby or thereby proves to have been false
or incorrect in any material respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole amount or interest on any
Indebtedness that is outstanding in an aggregate principal amount in
excess of $25,000,000 beyond any period of grace provided with respect
thereto, or (ii) the Company or any Subsidiary is in default in the
performance of or compliance with any term of any evidence of any
Indebtedness that is outstanding in an aggregate principal amount in
excess of $25,000,000 or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as a consequence of
such default or condition such Indebtedness has become, or has been
declared, due and payable before its stated maturity or before its
regularly scheduled dates of payment; or
(g) the Company or any Significant Subsidiary (i) is
generally not paying, or admits in writing its inability to pay, its
debts as they become due, (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction,
(iii) makes an assignment for the benefit of its creditors, (iv)
consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, (v) is adjudicated as insolvent or to
be liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the Company
or any Significant Subsidiary, a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief
or approving a petition for relief or reorganization or any other
petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company or any
Significant Subsidiary, or any such petition shall be filed against the
Company or any Significant Subsidiary and such petition shall not be
dismissed within 60 days; or
(i) a final judgment or judgments for the payment of
money aggregating in excess of $25,000,000 are rendered against one or
more of the Company and its Significant Subsidiaries, which judgments
are not, within 60 days after entry thereof,
25
paid, bonded, discharged or stayed pending appeal, or are not
discharged within 60 days after the expiration of such stay; or
(j) if (i) any Plan shall fail to satisfy the minimum
funding standards of ERISA or the Code for any plan year or part
thereof or a waiver of such standards or extension of any amortization
period is sought or granted under Section 412 of the Code, (ii) a
notice of intent to terminate any Plan shall have been or is reasonably
expected to be filed with the PBGC or the PBGC shall have instituted
proceedings under ERISA Section 4042 to terminate or appoint a trustee
to administer any Plan or the PBGC shall have notified the Company or
any ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of Section 4001(a)(18) of ERISA) under
all Plans determined in accordance with Title IV of ERISA, shall exceed
$25,000,000, (iv) the Company or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, (v) the Company or any ERISA
Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or
any Subsidiary establishes or amends any employee welfare benefit plan
that provides post-employment welfare benefits in a manner that would
increase the liability of the Company or any Subsidiary thereunder; and
the unsatisfied liability with respect to any such event or events
described in clauses (i) through (vi) above, either individually or
together with any other such event or events, would reasonably be
expected to have a Material Adverse Effect.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. ACCELERATION.
(a) If an Event of Default with respect to the Company
described in paragraph (g) or (h) of Section 11 (other than an Event of
Default described in clause (i) of paragraph (g) or described in clause
(vi) of paragraph (g) by virtue of the fact that such clause
encompasses clause (i) of paragraph (g)) has occurred, all the Notes
then outstanding shall automatically become immediately due and
payable.
(b) If any other Event of Default has occurred and is
continuing, any holder or holders of a majority in principal amount of
the Notes at the time outstanding may at any time at its or their
option, by notice or notices to the Company, declare all the Notes then
outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or
(b) of Section 11 has occurred and is continuing, any holder or holders
of Notes at the time outstanding affected by such Event of Default may
at any time, at its or their option, by notice or notices to the
Company, declare all the Notes held by it or them to be immediately due
and payable.
26
Upon any Notes becoming due and payable under this Section
12.1, whether automatically or by declaration, such Notes will forthwith mature
and the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by applicable law), shall
all be immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
12.2. OTHER REMEDIES.
If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been
declared immediately due and payable under Section 12.1, the holder of any Note
at the time outstanding may proceed to protect and enforce the rights of such
holder by an action at law, suit in equity or other appropriate proceeding,
whether for the specific performance of any agreement contained herein or in any
Note, or for an injunction against a violation of any of the terms hereof or
thereof, or in aid of the exercise of any power granted hereby or thereby or by
law or otherwise.
12.3. RESCISSION.
At any time after any Notes have been declared due and payable
pursuant to clause (b) or (c) of Section 12.1, the holders of not less than a
majority in principal amount of the Notes then outstanding, by written notice to
the Company, may rescind and annul any such declaration and its consequences if
(a) the Company has paid all overdue interest on the Notes, all principal of and
Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid
other than by reason of such declaration, and all interest on such overdue
principal and Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue interest in respect of the Notes, at the Default
Rate, (b) all Events of Default and Defaults, other than non-payment of amounts
that have become due solely by reason of such declaration, have been cured or
have been waived pursuant to Section 17, and (c) no judgment or decree has been
entered for the payment of any monies due pursuant hereto or to the Notes. No
rescission and annulment under this Section 12.3 will extend to or affect any
subsequent Event of Default or Default or impair any right consequent thereon.
12.4. NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC.
No course of dealing and no delay on the part of any holder of
any Note in exercising any right, power or remedy shall operate as a waiver
thereof or otherwise prejudice such holder's rights, powers or remedies. No
right, power or remedy conferred by this Agreement or by any Note upon any
holder thereof shall be exclusive of any other right, power or remedy referred
to herein or therein or now or hereafter available at law, in equity, by statute
or otherwise. Without limiting the obligations of the Company under Section 15,
the Company will
27
pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including reasonable attorneys'
fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. REGISTRATION OF NOTES.
The Company shall keep at its principal executive office a
register for the registration and registration of transfers of Notes. The name
and address of each holder of one or more Notes, each transfer thereof and the
name and address of each transferee of one or more Notes shall be registered in
such register. Prior to due presentment for registration of transfer, the Person
in whose name any Note shall be registered shall be deemed and treated as the
owner and holder thereof for all purposes hereof, and the Company shall not be
affected by any notice or knowledge to the contrary. The Company shall give to
any holder of a Note that is an Institutional Investor, promptly upon request
therefor, a complete and correct copy of the names and addresses of all
registered holders of Notes.
13.2. TRANSFER AND EXCHANGE OF NOTES.
Upon surrender of any Note at the principal executive office
of the Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or his attorney duly authorized in writing and accompanied by the address
for notices of each transferee of such Note or part thereof), the Company shall
execute and deliver within five Business Days, at the Company's expense (except
as provided below), one or more new Notes (as requested by the holder thereof)
in exchange therefor, in an aggregate principal amount equal to the unpaid
principal amount of the surrendered Note. Each such new Note shall be payable to
such Person as such holder may request and shall be substantially in the form of
Exhibit 1. Each such new Note shall be dated and bear interest from the date to
which interest shall have been paid on the surrendered Note or dated the date of
the surrendered Note if no interest shall have been paid thereon. The Company
may require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $100,000, provided that if necessary
to enable the registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $100,000. Any transferee,
by its acceptance of a Note registered in its name (or the name of its nominee),
shall be deemed to have made the representation set forth in Sections 6.1 and
6.2.
13.3. REPLACEMENT OF NOTES.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership and such
loss, theft, destruction or mutilation), and
28
(a) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to it (provided that if the holder of
such Note is, or is a nominee for, an original Purchaser or another
Institutional Investor holder of a Note with a minimum net worth of at
least $250,000,000, such Person's own unsecured agreement of indemnity
shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and
cancellation thereof,
the Company at its own expense shall execute and deliver within five Business
Days, in lieu thereof, a new Note, dated and bearing interest from the date to
which interest shall have been paid on such lost, stolen, destroyed or mutilated
Note or dated the date of such lost, stolen, destroyed or mutilated Note if no
interest shall have been paid thereon.
14. PAYMENTS ON NOTES.
14.1. PLACE OF PAYMENT.
Subject to Section 14.2, payments of principal, Make-Whole
Amount, if any, and interest becoming due and payable on the Notes shall be made
in Chicago, Illinois at the principal office of Bank of America, N.A. in such
jurisdiction. The Company may at any time, by notice to each holder of a Note,
change the place of payment of the Notes so long as such place of payment shall
be either the principal office of the Company in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction.
14.2. HOME OFFICE PAYMENT.
So long as you or your nominee shall be the holder of any
Note, and notwithstanding anything contained in Section 14.1 or in such Note to
the contrary, the Company will pay all sums becoming due on such Note for
principal, Make-Whole Amount, if any, and interest by the method and at the
address specified for such purpose below your name in Schedule A, or by such
other method or at such other address as you shall have from time to time
specified to the Company in writing for such purpose, without the presentation
or surrender of such Note or the making of any notation thereon, except that
upon written request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of any Note, you shall surrender
such Note for cancellation, reasonably promptly after any such request, to the
Company at its principal executive office or at the place of payment most
recently designated by the Company pursuant to Section 14.1. Prior to any sale
or other disposition of any Note held by you or your nominee you will, at your
election, either endorse thereon the amount of principal paid thereon and the
last date to which interest has been paid thereon or surrender such Note to the
Company in exchange for a new Note or Notes pursuant to Section 13.2. The
Company will afford the benefits of this Section 14.2 to any Institutional
Investor that is the direct or indirect transferee of any Note purchased by you
under this Agreement and that has made the same agreement relating to such Note
as you have made in this Section 14.2.
29
15. EXPENSES, ETC.
15.1. TRANSACTION EXPENSES.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all reasonable costs and expenses (including
reasonable attorneys' fees of your special counsel and, if reasonably required,
local or other counsel) incurred by you and each Other Purchaser or holder of a
Note in connection with such transactions and in connection with any amendments,
waivers or consents under or in respect of this Agreement or the Notes (whether
or not such amendment, waiver or consent becomes effective), including: (a) the
costs and expenses incurred in enforcing or defending (or determining whether or
how to enforce or defend) any rights under this Agreement or the Notes, or in
responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement or the Notes, or by reason of
being a holder of any Note, (b) the costs and expenses, including financial
advisors' fees, incurred in connection with the insolvency or bankruptcy of the
Company or any Subsidiary or in connection with any work-out or restructuring of
the transactions contemplated hereby and by the Notes, and (c) the costs and
expenses incurred in connection with the initial filing of this Agreement and
all related documents and financial information, and all subsequent annual and
interim filings of documents and financial information related to this
Agreement, with the Securities Valuation Office of the National Association of
Insurance Commissioners or any successor organization succeeding to the
authority thereof. The Company will pay, and will save you and each other holder
of a Note harmless from, all claims in respect of any fees, costs or expenses if
any, of brokers and finders (other than those retained by you).
15.2. SURVIVAL.
The obligations of the Company under this Section 15 will
survive the payment or transfer of any Note, the enforcement, amendment or
waiver of any provision of this Agreement or the Notes, and the termination of
this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall
survive the execution and delivery of this Agreement and the Notes, the purchase
or transfer by you of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of you or any
other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Company pursuant to this Agreement
shall be deemed representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, this Agreement and the Notes
embody the entire agreement and understanding between you and the Company and
supersede all prior agreements and understandings relating to the subject matter
hereof.
30
17. AMENDMENT AND WAIVER.
17.1. REQUIREMENTS.
This Agreement and the Notes may be amended, and the
observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of the
Company and the Required Holders, except that (a) no amendment or waiver of any
of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term
(as it is used therein), will be effective as to you unless consented to by you
in writing, and (b) no such amendment or waiver may, without the written consent
of the holder of each Note at the time outstanding affected thereby, (i) subject
to the provisions of Section 12 relating to acceleration or rescission, change
the amount or time of any prepayment or payment of principal of, or reduce the
rate or change the time of payment or method of computation of interest or of
the Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such
amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or
20.
17.2. SOLICITATION OF HOLDERS OF NOTES.
(a) Solicitation. The Company will provide each holder of
the Notes (irrespective of the amount of Notes then owned by it) with
sufficient information, sufficiently far in advance of the date a
decision is required, to enable such holder to make an informed and
considered decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof or of the Notes. The
Company will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions of
this Section 17 to each holder of outstanding Notes promptly following
the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly
pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, or grant any
security, to any holder of Notes as consideration for or as an
inducement to the entering into by any holder of Notes or any waiver or
amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently granted,
on the same terms, ratably to each holder of Notes then outstanding,
even if such holder did not consent to such waiver or amendment.
(c) Consent in Contemplation of Transfer. Any consent
made pursuant to this Section 17 by a holder of Notes that has
transferred or has agreed to transfer its Notes to the Company, any
Subsidiary or any Affiliate of the Company and has provided or has
agreed to provide such written consent as a condition to such transfer
shall be void and of no force or effect except solely as to such
holder, and any amendments effected or waivers granted or to be
effected or granted that would not have been or would not be so
effected or granted but for such consent (and the consents of other
holders of Notes that were acquired under the same or similar
conditions) shall be void and of no force or effect except solely as to
such holder.
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17.3. BINDING EFFECT, ETC.
Any amendment or waiver consented to as provided in this
Section 17 applies equally to all holders of Notes and is binding upon them and
upon each future holder of any Note and upon the Company without regard to
whether such Note has been marked to indicate such amendment or waiver. No such
amendment or waiver will extend to or affect any obligation, covenant,
agreement, Default or Event of Default not expressly amended or waived or impair
any right consequent thereon. No course of dealing between the Company and the
holder of any Note nor any delay in exercising any rights hereunder or under any
Note shall operate as a waiver of any rights of any holder of such Note. As used
herein, the term "this Agreement" or "the Agreement" and references thereto
shall mean this Agreement as it may from time to time be amended or
supplemented.
17.4. NOTES HELD BY COMPANY, ETC.
Solely for the purpose of determining whether the holders of
the requisite percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver or consent to be
given under this Agreement or the Notes, or have directed the taking of any
action provided herein or in the Notes to be taken upon the direction of the
holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by the Company or any of
its Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be
in writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at
the address specified for such communications in Schedule A,
or at such other address as you or it shall have specified to
the Company in writing,
(ii) if to any other holder of any Note, to such
holder at such address as such other holder shall have
specified to the Company in writing, or
(iii) if to the Company, to the Company at its
address set forth at the beginning hereof to the attention of
the Treasurer with a copy to the attention of the General
Counsel, or at such other address as the Company shall have
specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
32
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including
(a) consents, waivers and modifications that may hereafter be executed, (b)
documents received by you at the Closing (except the Notes themselves), and (c)
financial statements, certificates and other information previously or hereafter
furnished to you, may be reproduced by you at your sole cost and expense by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential
Information" means information delivered to you by or on behalf of the Company
or any Subsidiary in connection with the transactions contemplated by or
otherwise pursuant to this Agreement that is proprietary or confidential in
nature and that was clearly marked or labeled or otherwise adequately identified
when received by you as being confidential information of the Company or such
Subsidiary, provided that such term does not include information that (a) was
publicly known or otherwise known to you prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or omission by you or any
Person acting on your behalf, (c) otherwise becomes known to you other than
through disclosure by the Company or any Subsidiary, or (d) constitutes
financial statements delivered to you under Section 7.1 that are otherwise
publicly available. You will maintain the confidentiality of such Confidential
Information in accordance with procedures adopted by you in good faith to
protect confidential information of third parties delivered to you, provided
that you may deliver or disclose Confidential Information to (i) your directors,
trustees, officers, employees, agents, attorneys and Affiliates (to the extent
such disclosure reasonably relates to the administration of the investment
represented by your Notes), (ii) your financial advisors and other professional
advisors who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 20, (iii) any other
holder of any Note, (iv) any Institutional Investor to which you sell or offer
to sell such Note or any part thereof or any participation therein (if such
Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20), (v) any Person
from which you offer to purchase any security of the Company (if such Person has
agreed in writing prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 20), (vi) any federal or state
regulatory authority having jurisdiction over you, (vii) the National
Association of Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to information about
your investment portfolio or (viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (w) to effect compliance with any
law, rule, regulation or order
33
applicable to you, (x) in response to any subpoena or other legal process, (y)
in connection with any litigation to which you are a party or (z) if an Event of
Default has occurred and is continuing, to the extent you may reasonably
determine such delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies under your Notes
and this Agreement. Each holder of a Note, by its acceptance of a Note, will be
deemed to have agreed to be bound by and to be entitled to the benefits of this
Section 20 as though it were a party to this Agreement. On reasonable request by
the Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this Agreement or
requested by such holder (other than a holder that is a party to this Agreement
or its nominee), such holder will enter into an agreement with the Company
embodying the provisions of this Section 20.
Notwithstanding anything to the contrary set forth herein or
in any other written or oral understanding or agreement to which the parties
hereto are parties or by which they are bound, the parties acknowledge and agree
that (i) any obligations of confidentiality contained herein and therein do not
apply and have not applied from the commencement of discussions between the
parties to the tax treatment and tax structure of the Notes (and any related
transactions or arrangements), and (ii) each party (and each of its employees,
representatives, or other agents) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the Notes and all
materials of any kind (including opinions or other tax analyses) that are
provided to such party relating to such tax treatment and tax structure, all
within the meaning of Treasury Regulations Section 1.6011-4.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your
Affiliates as the purchaser of the Notes that you have agreed to purchase
hereunder, by written notice to the Company, which notice shall be signed by
both you and such Affiliate, shall contain such Affiliate's agreement to be
bound by this Agreement and shall contain a confirmation by such Affiliate of
the accuracy with respect to it of the representations set forth in Section 6.
Upon receipt of such notice, wherever the word "you" is used in this Agreement
(other than in this Section 21), such word shall be deemed to refer to such
Affiliate in lieu of you. In the event that such Affiliate is so substituted as
a purchaser hereunder and such Affiliate thereafter transfers to you all of the
Notes then held by such Affiliate, upon receipt by the Company of notice of such
transfer, wherever the word "you" is used in this Agreement (other than in this
Section 21), such word shall no longer be deemed to refer to such Affiliate, but
shall refer to you, and you shall have all the rights of an original holder of
the Notes under this Agreement.
22. MISCELLANEOUS.
22.1. SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement
by or on behalf of any of the parties hereto bind and inure to the benefit of
their respective successors and assigns (including any subsequent holder of a
Note) whether so expressed or not.
34
22.2. PAYMENTS DUE ON NON-BUSINESS DAYS.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole Amount or interest on
any Note that is due on a date other than a Business Day shall be made on the
next succeeding Business Day without including the additional days elapsed in
the computation of the interest payable on such next succeeding Business Day.
22.3. SEVERABILITY.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4. CONSTRUCTION.
Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant shall not (absent
such an express contrary provision) be deemed to excuse compliance with any
other covenant. Where any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
22.5. COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
22.6. JURISDICTION; WAIVER OF JURY TRIAL.
The Company irrevocably submits to the non-exclusive in
personam jurisdiction of any New York State or federal court sitting in the
Borough of Manhattan, The City of New York, over any suit, action or proceeding
arising out of or relating to this Agreement or the Notes. To the fullest extent
permitted by applicable law, the Company irrevocably waives and agrees not to
assert, by way of motion, as a defense or otherwise, any claim that it is not
subject to the in personam jurisdiction of any such court, any objection that it
may now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
35
THE COMPANY HEREBY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT
ON OR WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OTHER DOCUMENT EXECUTED
IN CONNECTION HEREWITH OR THEREWITH.
22.7. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE
OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
36
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement and return
it to the Company, whereupon the foregoing shall become a binding agreement
between you and the Company.
Very truly yours,
NUVEEN INVESTMENTS, INC.
By: /s/ Alan G. Berkshire
----------------------------------------
Name: Alan G. Berkshire
Title: Senior Vice President and Secretary
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-1
The foregoing is agreed
to as of the date thereof.
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Mark E. Kishler
----------------------------
Name: Mark E. Kishler
Title: Authorized Representative
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-2
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ A. Dennis White
-------------------
Name: A. Dennis White
Title: Director
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-3
AIG SUNAMERICA LIFE ASSURANCE COMPANY
FIRST SUNAMERICA LIFE INSURANCE COMPANY
SUNAMERICA LIFE INSURANCE COMPANY
BY: AIG Global Investment Corp.,
investment advisor
By: /s/ Gerald F. Herman
--------------------
Name: Gerald F. Herman
Title: Vice President
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-4
USG ANNUITY & LIFE COMPANY
GOLDEN AMERICAN LIFE INSURANCE COMPANY
By: ING Investment Management LLC, as Agent
By: /s/ Christopher P. Lyons
------------------------
Name: Christopher P. Lyons
Title: Vice President
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-5
AMERICAN HERITAGE LIFE INSURANCE COMPANY
By: /s/ Jeffrey Cannon
------------------
Name: Jeffrey Cannon
By: /s/ Jerry D. Kinkula
--------------------
Name: Jerry D. Kinkula
Authorized Signatories
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Jeffrey Cannon
------------------
Name: Jeffrey Cannon
By: /s/ Jerry D. Kinkula
--------------------
Name: Jerry D. Kinkula
Authorized Signatories
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-6
NEW YORK LIFE INSURANCE COMPANY
By: /s/ Trinh Nguyen
----------------
Name: Trinh Nguyen
Title: Asst. Vice President
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By: New York Life Investment Management LLC,
its Investment Manager
By: /s/ Trinh Nguyen
----------------
Name: Trinh Nguyen
Title: Vice President
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION INSTITUTIONALLY OWNED LIFE
INSURANCE SEPARATE ACCOUNT
By: New York Life Investment Management LLC,
its Investment Manager
By: /s/ Trinh Nguyen
----------------
Name: Trinh Nguyen
Title: Vice President
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-7
PACIFIC LIFE INSURANCE COMPANY
(Nominee: Mac & Co.)
By: /s/ Cathy L. Schwartz
---------------------
Name: Cathy L. Schwartz
Title: Assistant Vice President
By: /s/ Peter S. Fiek
-----------------
Name: Peter S. Fiek
Title: Assistant Secretary
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-8
CIGNA LIFE INSURANCE COMPANY OF NEW YORK
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc. (authorized agent)
By: /s/ Debra J. Height
-------------------
Name: Debra J. Height
Title: Managing Director
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-9
THE TRAVELERS INSURANCE COMPANY
By: /s/ Matthew J. McInerny
-----------------------
Name: Matthew J. McInerny
Title: Investment Officer
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ Matthew J. McInerny
-----------------------
Name: Matthew J. McInerny
Title: Investment Officer
NATIONAL BENEFIT LIFE INSURANCE COMPANY
By: /s/ Matthew J. McInerny
-----------------------
Name: Matthew J. McInerny
Title: Investment Officer
PRIMERICA LIFE INSURANCE COMPANY
By: /s/ Matthew J. McInerny
-----------------------
Name: Matthew J. McInerny
Title: Investment Officer
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-10
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: David L. Babson & Company Inc. as
Investment Adviser
By: /s/ Mark A. Ahmed
--------------------
Name: Mark A. Ahmed
Title: Managing Director
C.M. LIFE INSURANCE COMPANY
By: David L. Babson & Company Inc. as
Investment Adviser
By: /s/ Mark A. Ahmed
---------------------
Name: Mark A. Ahmed
Title: Managing Director
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-11
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY
By: /s/ Ernie Friesen
-------------------------------
Name: Ernie Friesen
Title: Vice President - Investments
By: /s/ Janet Hurkett
------------------------
Name: Janet Hurkett
Title: Manager - Investments
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-12
HARTFORD LIFE INSURANCE COMPANY
By: Hartford Investment Services, Inc., its
Agent and Attorney-in-Fact
By: /s/ Ronald Mendel
-----------------
Name: Ronald Mendel
Title: Senior Vice President
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-13
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: /s/ Estelle Simsolo
--------------------------------
Name: Estelle Simsolo
Title: Director - Private Placements
TIAA-CREF LIFE INSURANCE COMPANY
By: /s/ Estelle Simsolo
---------------------------------
Name: Estelle Simsolo
Title: Director - Private Placements
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-14
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: /s/ Jon C. Heiny
----------------
Name: Jon C. Heiny
Title: Counsel
By: /s/ Christopher J. Henderson
----------------------------
Name: Christopher J. Henderson
Title: Counsel
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-15
SCOTTISH ANNUITY & LIFE INSURANCE
COMPANY (CAYMAN) LTD
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: /s/ Jon C. Heiny
----------------
Name: Jon C. Heiny
Title: Counsel
By: /s/ Christopher J. Henderson
----------------------------
Name: Christopher J. Henderson
Title: Counsel
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-16
CALHOUN & CO., AS NOMINEE FOR COMERICA
BANK & TRUST, NATIONAL ASSOCIATION,
TRUSTEE TO THE TRUST CREATED BY TRUST
AGREEMENT DATED OCTOBER 1, 2002
By: /s/ Annette Lawson
------------------
Name: Annette Lawson
Title: Trust Analyst
(Scottish - Lincoln)
CALHOUN & CO., AS NOMINEE FOR COMERICA
BANK & TRUST, NATIONAL ASSOCIATION,
TRUSTEE TO THE TRUST CREATED BY TRUST
AGREEMENT DATED OCTOBER 1, 2002
By: /s/ Annette Lawson
------------------
Name: Annette Lawson
Title: Trust Analyst
(Scottish - 5YR)
CALHOUN & CO., AS NOMINEE FOR SCOTTISH RE
(DUBLIN) LTD / SCOTTISH RE (US) INC RESERVE
CREDIT TRUST ACCOUNT
By: /s/ Annette Lawson
------------------
Name: Annette Lawson
Title: Trust Analyst
(Scottish - Dublin)
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-17
JEFFERSON PILOT FINANCIAL INSURANCE COMPANY
By: /s/ James E. McDonald, Jr.
--------------------------
Name: James E. McDonald, Jr.
Title:Vice President
JEFFERSON PILOT LIFEAMERICA INSURANCE
COMPANY
By: /s/ James E. McDonald, Jr.
--------------------------
Name: James E. McDonald, Jr.
Title: Vice President
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-18
UNITED OF OMAHA LIFE INSURANCE COMPANY
By: /s/ Edwin H. Garrison, Jr.
--------------------------
Name: Edwin H. Garrison, Jr.
Title: First Vice President
COMPANION LIFE INSURANCE COMPANY
By: /s/ Edwin H. Garrison, Jr.
--------------------------
Name: Edwin H. Garrison, Jr.
Title: Authorized Representative
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-19
GUIDEONE PROPERTY & CASUALTY INSURANCE
COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Joseph Gogola
-----------------
Name: Joseph Gogola
Title: Vice President
GUIDEONE MUTUAL INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Joseph Gogola
-----------------
Name: Joseph Gogola
Title: Vice President
MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Joseph Gogola
-----------------
Name: Joseph Gogola
Title: Vice President
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-20
PHL VARIABLE INSURANCE COMPANY
By: /s/ Christopher M. Wilkos
-------------------------
Name: Christopher M. Wilkos
Title: Senior Vice President
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-21
MIDLAND NATIONAL LIFE INSURANCE COMPANY
By: /s/ Todd Boehly
---------------------
Name: Todd Boehly
Title: Managing Director
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-22
AMERICAN FAMILY LIFE INSURANCE COMPANY
By: /s/ Phillip Hannifan
--------------------
Name: Phillip Hannifan
Title: Investment Director
Nuveen Investments, Inc. 4.22% Senior Notes due September 19, 2008
Note Purchase Agreement Dated as of September 19, 2003
S-23
EXHIBIT 1
[FORM OF SENIOR NOTE]
NUVEEN INVESTMENTS, INC.
4.22% Senior Note
Due September 19, 2008
No. R-[__] [Date]
$[_______] PPN[______________]
FOR VALUE RECEIVED, the undersigned, NUVEEN INVESTMENTS, INC.
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to [ ], or registered
assigns, the principal sum of $[ ] on September 19, 2008, with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance thereof at the rate of 4.22% per annum from the date hereof,
payable semiannually, on March 19 and September 19 in each year, commencing with
the March 19 or September 19 next succeeding the date hereof, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement referred to below),
payable semiannually as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the greater
of (i) 6.22% or (ii) 2% over the rate of interest publicly announced by Bank of
America, N.A. from time to time in Chicago, Illinois as its "base" or "prime"
rate.
Payments of principal of, interest on and any Make-Whole
Amount with respect to this Note are to be made in lawful money of the United
States of America at the principal office of Bank of America, N.A. in Chicago,
Illinois or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreement
referred to below.
This Note is one of a series of Senior Notes (herein called
the "Notes") issued pursuant to a Note Purchase Agreement dated as of September
19, 2003 (as from time to time amended, the "Note Purchase Agreement"), between
the Company and the respective Purchasers named therein and is entitled to the
benefits and subject to the provisions thereof. Each holder of this Note will be
deemed, by its acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase Agreement and (ii) to
have made the representation set forth in Section 6.2 of the Note Purchase
Agreement.
Exhibit 1
This Note is a registered Note and, as provided in the Note
Purchase Agreement, upon surrender of this Note for registration of transfer,
duly endorsed, or accompanied by a written instrument of transfer duly executed,
by the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note is subject to optional prepayment, in whole or from
time to time in part, at the times and on the terms specified in the Note
Purchase Agreement.
If an Event of Default, as defined in the Note Purchase
Agreement, occurs and is continuing, the principal of this Note may be declared
or otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the law of the State of New
York, without regard to the principles of conflicts of law.
NUVEEN INVESTMENTS, INC.
By: ____________________________
Name: __________________________
Title: _________________________
Exhibit 1
2