EXECUTION COPY
Exhibit 10.6
3-YEAR
CREDIT AGREEMENT
Dated as of August 7, 2003
among
NUVEEN INVESTMENTS, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
BANK ONE, NA,
as Documentation Agent
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS...................................... 1
1.01 Defined Terms........................................................... 1
1.02 Other Interpretive Provisions........................................... 14
1.03 Accounting Terms........................................................ 14
1.04 Rounding................................................................ 15
1.05 References to Agreements and Laws....................................... 15
1.06 Times of Day............................................................ 15
ARTICLE II. THE COMMITMENTS AND LOANS............................................. 15
2.01 Loans................................................................... 15
2.02 Borrowings, Conversions and Continuations of Loans...................... 15
2.03 Prepayments............................................................. 17
2.04 Termination or Reduction of Commitments................................. 17
2.05 Repayment of Loans...................................................... 18
2.06 Interest................................................................ 18
2.07 Fees.................................................................... 18
2.08 Computation of Interest and Fees........................................ 19
2.09 Evidence of Debt........................................................ 19
2.10 Payments Generally...................................................... 19
2.11 Sharing of Payments..................................................... 21
2.12 Increase in Commitments................................................. 22
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY................................ 23
3.01 Taxes................................................................... 23
3.02 Illegality.............................................................. 24
3.03 Inability to Determine Rates............................................ 24
3.04 Increased Cost and Reduced Return; Capital Adequacy..................... 24
3.05 Funding Losses.......................................................... 25
3.06 Matters Applicable to all Requests for Compensation..................... 25
3.07 Survival................................................................ 26
ARTICLE IV. CONDITIONS PRECEDENT TO LOANS......................................... 26
4.01 Conditions of Initial Loans............................................. 26
4.02 Conditions to All Borrowings............................................ 27
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................................ 28
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5.01 Corporate Existence; Conduct of Business................................ 28
5.02 Authorization and Validity.............................................. 28
5.03 Compliance with Laws and Contracts...................................... 28
5.04 Governmental Consents................................................... 29
5.05 Financial Statements.................................................... 29
5.06 Material Adverse Change................................................. 29
5.07 Taxes................................................................... 29
5.08 Litigation and Contingent Obligations................................... 30
5.09 Subsidiaries............................................................ 30
5.10 ERISA................................................................... 30
5.11 Defaults................................................................ 30
5.12 Federal Reserve Regulations............................................. 30
5.13 Public Utility Holding Company.......................................... 31
5.14 Certain Fees............................................................ 31
5.15 Ownership of Properties................................................. 31
5.16 Material Agreements..................................................... 31
5.17 Insurance............................................................... 31
5.18 Disclosure.............................................................. 32
ARTICLE VI. COVENANTS............................................................. 32
6.01 Financial Reporting..................................................... 32
6.02 Use of Proceeds......................................................... 34
6.03 Notice of Default....................................................... 34
6.04 Conduct of Business..................................................... 34
6.05 Taxes................................................................... 34
6.06 Insurance............................................................... 34
6.07 Compliance with Laws; Material Contractual Obligations.................. 35
6.08 Maintenance of Properties............................................... 35
6.09 Inspection.............................................................. 35
6.10 Ownership of Subsidiaries............................................... 35
6.11 Indebtedness............................................................ 35
6.12 Merger.................................................................. 36
6.13 Sale of Assets.......................................................... 36
6.14 Sale of Accounts........................................................ 37
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6.15 Investments and Purchases............................................... 37
6.16 Contingent Obligations.................................................. 37
6.17 Liens................................................................... 38
6.18 Affiliates.............................................................. 38
6.19 Change in Corporate Structure; Fiscal Year.............................. 38
6.20 Inconsistent Agreements................................................. 38
6.21 Financial Covenants..................................................... 39
6.22 ERISA Compliance........................................................ 39
ARTICLE VII. DEFAULTS.............................................................. 39
7.01 Defaults................................................................ 39
7.02 Remedies Upon Event of Default.......................................... 41
7.03 Application of Funds.................................................... 41
ARTICLE VIII. ADMINISTRATIVE AGENT.................................................. 42
8.01 Appointment and Authorization of Administrative Agent................... 42
8.02 Delegation of Duties.................................................... 42
8.03 Liability of Administrative Agent....................................... 42
8.04 Reliance by Administrative Agent........................................ 43
8.05 Notice of Default....................................................... 43
8.06 Credit Decision; Disclosure of Information by Administrative Agent...... 44
8.07 Indemnification of Administrative Agent................................. 44
8.08 Administrative Agent in its Individual Capacity......................... 45
8.09 Successor Administrative Agent.......................................... 45
8.10 Administrative Agent May File Proofs of Claim........................... 45
8.11 Other Agents; Arrangers and Managers.................................... 46
ARTICLE IX. MISCELLANEOUS......................................................... 46
9.01 Amendments, Etc......................................................... 46
9.02 Notices and Other Communications; Facsimile Copies...................... 47
9.03 No Waiver; Cumulative Remedies.......................................... 48
9.04 Attorney Costs, Expenses and Taxes...................................... 49
9.05 Indemnification by the Borrower......................................... 49
9.06 Payments Set Aside...................................................... 50
9.07 Successors and Assigns.................................................. 50
9.08 Confidentiality......................................................... 52
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9.09 Set-off................................................................. 53
9.10 Interest Rate Limitation................................................ 53
9.11 Counterparts............................................................ 54
9.12 Integration............................................................. 54
9.13 Survival of Representations and Warranties.............................. 54
9.14 Severability............................................................ 54
9.15 Tax Forms............................................................... 54
9.16 Replacement of Lenders.................................................. 56
9.17 Governing Law........................................................... 56
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SCHEDULES
2.01 Commitments and Pro Rata Shares
5.09 Subsidiaries and Investments
5.10 ERISA
9.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A Loan Notice
B Note
C Compliance Certificate
D Assignment and Assumption
E-1 Winston & ▇▇▇▇▇▇ Opinion
E-2 ▇▇▇▇ ▇. Berkshire Opinion
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3-YEAR CREDIT AGREEMENT
This 3-YEAR CREDIT AGREEMENT ("Agreement") is entered into as of August
7, 2003, among NUVEEN INVESTMENTS, INC., a Delaware corporation (the
"Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), BANK OF AMERICA, N.A., as
Administrative Agent, CITIBANK N.A., as Syndication Agent, and BANK ONE, NA, as
Documentation Agent.
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 9.02, or such
other address or account as the Administrative Agent may from time to time
notify the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Advisers Act" means the Investment Advisers Act of 1940, as amended.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract, or otherwise.
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement.
"Annual Operating Cash Flow" means, as at any fiscal quarter end,
EBITDA for the four consecutive fiscal quarters then ended.
"Applicable Rate" means the following percentages per annum, based upon
the Leverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b):
APPLICABLE RATE
(in basis points)
Pricing Eurodollar Rate and
Level Leverage Ratio Facility Fee Federal Funds Rate Utilization Fee
------- ------------------------- ----------------- ------------------- ---------------
1 <1.00:1 10.0 32.5 5.0
2 > or = 1.00:1 but <2.00:1 12.0 38.0 7.5
3 > or = 2.00:1 15.0 45.0 10.0
Any increase or decrease in the Applicable Rate resulting from a change
in the Consolidated Adjusted Leverage Ratio shall become effective as of the
first Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.01(c); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Level 3 shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered. Until increased
or decreased pursuant to the provisions above, the Applicable Rate in effect
from the Closing Date through September 30, 2003 shall be determined based upon
Pricing Level 2.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit D.
"Attorney Costs" means and includes all fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all expenses and
disbursements of internal counsel.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.04, and (c) the date of
termination of the commitment of each Lender to make Loans pursuant to Section
7.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate
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set by Bank of America based upon various factors including Bank of America's
costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in the
public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a borrowing consisting of simultaneous Loans of the
same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by each of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between Banks in the
London interbank eurodollar market.
"CFTC" means the Commodities Future Trading Commission and any
successor entity.
"Change of Control" means (a) the acquisition by any Person, or two or
more Persons acting in concert, including without limitation any acquisition
effected by means of any transaction contemplated by Section 6.12, of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Exchange Act of 1934) of 30% or more of the outstanding
shares of voting stock of the Borrower, or (b) The St. ▇▇▇▇ Companies, Inc., or
a successor acceptable to each of the Lenders, shall cease to own beneficially
and of record, free and clear of all Liens, other encumbrances, or voting
agreements, restrictions or trusts of any kind at least 50.1% of the outstanding
shares of capital stock of the Borrower on a fully diluted basis and shares
representing the right to elect a majority of the directors of the Borrower, or
(c) during any period of 25 consecutive calendar months, commencing on the date
of this Agreement, the ceasing of those individuals (the "Continuing Directors")
who (i) were directors of the Borrower on the first day of each such period or
(ii) subsequently became directors of the Borrower and whose initial election or
initial nomination for election subsequent to that date was approved by a
majority of the Continuing Directors then on the board of directors of the
Borrower, to constitute a majority of the board of directors of the Borrower.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Commitment" means, as to each Lender, its obligation to make Loans to
the Borrower pursuant to Section 2.01, in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 2.01 or in the Assignment
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and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (d) in respect of any Rate Hedging Obligations. The
amount of any Contingent Obligation shall, in the case of Guaranty Obligations,
be deemed equal to the stated or determinable amount of the primary obligation
in respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof,
and in the case of other Contingent Obligations, shall be equal to the maximum
reasonably anticipated liability in respect thereof.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Debt" means the aggregate outstanding principal balance of all
Indebtedness of the Borrower and its Subsidiaries on a consolidated basis
required to be reflected on a balance sheet prepared in accordance with GAAP.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the
4
United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans required to be funded by it hereunder within one Business
Day of the date required to be funded by it hereunder, (b) has otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Distribution Receivables" means advanced sales commissions reflected
on the consolidated balance sheet of the Borrower and its Subsidiaries in
accordance with GAAP representing fees, commissions or other amounts payable by
registered investment companies sponsored or advised by Nuveen Investments or
any Affiliate thereof relating to the distribution of such investment companies'
shares.
"Dollar" and "$" mean lawful money of the United States.
"EBITDA" means, for any applicable computation period, the Borrower's
and Subsidiaries' Net Income on a consolidated basis from continuing operations,
plus (a) income and franchise taxes paid or accrued during such period, (b)
interest expenses accrued during such period, and (c) amortization and
depreciation and other non-cash charges deducted in determining Net Income for
such period, all determined and computed in accordance with GAAP.
"Eligible Assignee" has the meaning specified in Section 9.07(g).
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"Eurodollar Base Rate" has the meaning set forth in the definition of
Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Base Rate
Eurodollar Rate = --------------------------------------
1.00 - Eurodollar Reserve Percentage
5
Where,
"Eurodollar Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and
(b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits in
Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of
America's London Branch to major Banks in the London interbank
eurodollar market at their request at approximately 4:00 p.m. (London
time) two Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based
on the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities and Exchange Act of 1934, and
regulations promulgated thereunder.
6
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Federal Funds Rate Loan" means a Loan that bears interest based on the
Federal Funds Rate.
"Fee Letter" means the letter agreement, dated July 14, 2003, among the
Borrower, the Administrative Agent and the Arranger.
"Foreign Lender" has the meaning specified in Section 9.15(a)(i).
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such
7
property); (f) all obligations with respect to capital leases; (g) all Rate
Hedging Obligations; (h) all indebtedness referred to in clauses (a) through (g)
above secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness;
and (i) all Guaranty Obligations in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (g) above.
"Indemnified Liabilities" has the meaning set forth in Section 9.05.
"Indemnitees" has the meaning set forth in Section 9.05.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; undertaken under U.S. Federal, state or foreign law, including
the Bankruptcy Code.
"Interest Payment Date" means, (a) as to any Eurodollar Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan or Federal Funds Rate Loan, the first Business Day
of each January, April, July and October and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless, in the case of a Eurodollar Rate Loan, such Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period shall extend beyond the Maturity
Date.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
8
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, notes, debentures or other securities of any other Person
made by such Person.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lender" has the meaning specified in the introductory paragraph
hereto.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Leverage Ratio" means, as determined as of the end of any fiscal
quarter, the ratio of (a) Debt at such time to (b) Annual Operating Cash Flow.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance or lien
(statutory or other) in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing lease
having substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which such
lien relates as debtor, under the Uniform Commercial Code or any comparable law)
and any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease.
"Loan" has the meaning specified in Section 2.01.
"Loan Documents" means this Agreement, each Note, and the Fee Letter.
"Loan Notice" means a notice of (a) a Borrowing, (b) a conversion of
Loans from one Type to the other, or (c) a continuation of Eurodollar Rate
Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially
in the form of Exhibit A.
"Margin Stock" has the meaning assigned to that term under Regulation
U.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, assets or financial
condition of the Borrower or the Borrower and its Subsidiaries taken as a whole;
(b) a material impairment of the ability of the Borrower to perform under any
Loan Document and to avoid any Event of Default; or (c) a
9
material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower of any Loan Document.
"Maturity Date" means August 7, 2006.
"MSRB" means the Municipal Securities Rulemaking Board or any successor
entity.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"NASD" means the NASD Regulation, Inc.
"Net Income" means, for any computation period, with respect to the
Borrower on a consolidated basis with its Subsidiaries (other than any
Subsidiary which is restricted from declaring or paying dividends or otherwise
advancing funds to its parent whether by contract or otherwise), cumulative net
income earned during such period as determined in accordance with GAAP.
"Net Worth" means at any date the consolidated common stockholders
equity of the Borrower and its consolidated Subsidiaries and redeemable
preferred stock of the Borrower determined in accordance with GAAP.
"Note" means a promissory note made by the Borrower in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit B.
"Nuveen Advisory" means Nuveen Advisory Corp., a Delaware corporation.
"Nuveen Asset Management" means Nuveen Asset Management Inc., a
Delaware corporation.
"Nuveen Institutional" means Nuveen Institutional Advisory Corp., a
Delaware corporation.
"Nuveen Investments" means Nuveen Investments, LLC, a Delaware limited
liability company.
"NWQ Investment Management" means NWQ Investment Management, LLC., a
Delaware limited liability company.
"NYSE" means the New York Stock Exchange, Inc.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, the Borrower arising under any Loan
Document or otherwise with respect to any Loan, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against the Borrower or any Affiliate
thereof of any proceeding
10
under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
"Other Credit Agreement" means the 364-day Revolving Credit Agreement
dated the date hereof among the Borrower, Bank of America, as Administrative
Agent and certain lenders.
"Outstanding Amount" means the aggregate outstanding principal amount
of the Loans after giving effect to any borrowings and prepayments or repayments
of Loans.
"Participant" has the meaning specified in Section 9.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under ERISA.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means an employee pension benefit plan, as defined in Section
3(2) of ERISA, as to which the Borrower or any member of the Controlled Group
may have any liability.
"Pro Rata Share" means, with respect to each Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment of such Lender at such
time and the denominator of which is the amount of the Aggregate Commitments at
such time. The initial Pro Rata Share of each Lender is set forth opposite the
name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchase" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (a) acquires any ongoing business or all or
substantially all of the assets of any Person or division or line of business
thereof, whether through purchase of assets, merger or otherwise, or (b)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding partnership interests of a partnership.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward rate
11
currency or interest rate options, puts and warrants, and (b) any and all
cancellations, buybacks, reversals, terminations or assignments of any of the
foregoing.
"Register" has the meaning set forth in Section 9.07(c).
"Regulation D" means Regulation D of the FRB as from time to time in
effect and any successor thereto or other regulation or official interpretation
of the FRB relating to reserve requirements applicable to depositary
institutions.
"Regulation T" means Regulation T of the FRB as from time to time in
effect and shall include any successor or other regulation or official
interpretation of the FRB relating to the extension of credit by securities
brokers and dealers for the purpose of purchasing or carrying margin stocks
applicable to such Persons.
"Regulation U" means Regulation U of the FRB from time to time in
effect and any successor or other regulation or official interpretation of the
FRB relating to the extension of credit by banks for the purpose of purchasing
or carrying margin stocks applicable to such Person.
"Regulation X" means Regulation X of the FRB as from time to time in
effect and shall include any successor or other regulation or official
interpretation of FRB relating to the extension of credit by the specified
lenders for the purpose of purchasing or carrying margin stocks applicable to
such Persons.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event; provided, that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall be
a Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Commitments or, if the commitment of each
Lender to make Loans has been terminated pursuant to Section 7.02, Lenders
holding in the aggregate more than 50% of the Total Outstandings; provided that
the Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Responsible Officer" means the chief executive officer, the president,
any executive vice president or any senior vice president of the Borrower; or,
with respect to compliance with financial covenants, the chief financial officer
or the treasurer of the Borrower, or any other officer having substantially the
same authority and responsibility.
"▇▇▇▇▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇▇▇▇▇ Asset Management, Inc., a Delaware
corporation.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
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"Seed Money" means Investments (i) constituting the initial investment
in any registered investment company sponsored by Nuveen Investments or any
Affiliate thereof made by the Borrower or any Subsidiary thereof pursuant to
Section 14(a) (or any successor provision) of the Investment Company Act,
without regard to any minimum investment requirements under said Section 14(a)
or (ii) constituting a portfolio of securities maintained on the books of the
Borrower or any Affiliate thereof and invested in accordance with a particular
method or investment style in order to develop a performance record and to be
subsequently offered to advisory clients as an investment option.
"Short-term Indebtedness" means Indebtedness with a term of no more
than ten Business Days.
"Single Employer Plan" means a Plan subject to Title IV of ERISA
maintained by the Borrower or any member of the Controlled Group for employees
of the Borrower or any member of the Controlled Group, other than a
Multiemployer Plan.
"SIPC Act" has the meaning specified in Section 7.01(j).
"Subsidiary" of a Person means any corporation, limited liability
company, association, partnership, joint venture or other business entity of
which more than 50% of the voting stock or other equity interests (in the case
of Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (a) represents more than 10% of
the consolidated assets of the Borrower and its Subsidiaries, as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries as
at the end of the quarter next preceding the date on which such determination is
made, or (b) is responsible for more than 10% of the consolidated net sales or
20% of the Net Income of the Borrower and its Subsidiaries for the 12-month
period ending as of the end of the quarter next preceding the date of
determination.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Symphony Asset Management" means Symphony Asset Management, LLC, a
California limited liability company.
"Termination Event" means, with respect to a Plan which is subject to
Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Borrower or
any other member of the Controlled Group from such Plan during a plan year in
which the Borrower or any other member of the Controlled Group was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or was deemed
such under Section 4068(f) of ERISA, (c) the termination of such Plan, the
filing of a notice of intent to terminate such Plan or the treatment of an
amendment of such Plan as a termination under Section 4041 of ERISA, (d) the
institution by the PBGC of proceedings to terminate such Plan or (e) any event
or condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or appointment of a trustee to administer, such Plan.
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"Total Outstandings" means the aggregate Outstanding Amount of all
Loans.
"Type" means, with respect to a Loan, its character as a Base Rate
Loan, a Eurodollar Rate Loan or a Federal Funds Rate Loan.
"UIT" means a unit investment trust consisting of a portfolio of
municipal bonds or taxable securities.
"Unfunded Liability" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under a Single Employer Plan
exceeds the fair market value of assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans using PBGC
actuarial assumptions for single employer plan terminations.
"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of each
class having ordinary voting power, and 100% of the capital stock of every other
class, in each case, at the time as of which any determination is being made, is
owned, beneficially and of record, by the Borrower, or by one or more of the
other Wholly-Owned Subsidiaries, or both.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement
and each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial
14
ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent
with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided that, until
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to organization documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
ARTICLE II.
THE COMMITMENTS AND LOANS
2.01 LOANS. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a "Loan") to the Borrower
from time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender's Commitment; provided, however, that after giving effect to any
Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Loans of any
Lender shall not exceed such Lender's Commitment. Within the limits of each
Lender's Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01, prepay under Section 2.03, and
reborrow under this Section 2.01. Loans may be Base Rate Loans, Federal Funds
Rate Loans or Eurodollar Rate Loans, as further provided herein.
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2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Loans or Federal Funds Rate
Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans or
Federal Funds Rate Loans or conversion from Base Rate Loans to Federal Funds
Rate Loans or Federal Funds Rate Loans to Base Rate Loans. Each telephonic
notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Each Borrowing of, conversion to or continuation of Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Loan Notice (whether telephonic or written) shall specify (i)
whether the Borrower is requesting a Borrowing, a conversion of Loans from one
Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Loans are to be converted, and (v) if applicable, the duration of
the Interest Period with respect thereto. If the Borrower fails to specify a
Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans
in any such Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 4.02 (and, if such Borrowing is
the initial Loan, Section 4.01), the Administrative Agent shall make all funds
so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
16
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than five Interest Periods in effect with respect to
Loans.
2.03 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Loans or Federal Funds Rate Loans; and (ii) any
prepayment of Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Loans of the Lenders in accordance with their respective Pro
Rata Shares.
(b) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans in an aggregate amount equal to such excess.
2.04 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, and (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Pro Rata Share. All facility and
utilization fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
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2.05 REPAYMENT OF LOANS. The Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of Loans outstanding on such date.
2.06 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate; (ii) each Federal Funds
Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Federal Funds
Rate plus the Applicable Rate; and (iii) each Base Rate Loan shall bear interest
on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate.
(b) If any amount payable by the Borrower under any Loan Document is
not paid when due and such failure constitutes a Default, whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all its outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein; provided, however, the interest payable on Federal Funds Rate
Loans and Base Rate Loans shall be payable on each Interest Payment Date for the
period ended the prior Business Day (other than the interest payable on the
Maturity Date which shall be payable for the period ended on the Maturity
Date.). Interest hereunder shall be due and payable in accordance with the terms
hereof before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.
2.07 FEES.
(a) Facility Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a facility
fee equal to the Applicable Rate times the actual daily amount of the Aggregate
Commitments (or, if the Aggregate Commitments have terminated, on the
Outstanding Amount of all Loans), regardless of usage. The facility fee shall
accrue at all times during the Availability Period (and thereafter so long as
any Loans remain outstanding), including at any time during which one or more of
the conditions in Article IV is not met, and shall be due and payable quarterly
in arrears on the first Business Day of each January, April, July and October
for the period ended the prior Business Day, commencing with the first such date
to occur after the Closing Date, and on the Maturity Date for the period ended
on the Maturity Date (and, if applicable, thereafter on demand). The facility
fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.
18
(b) Utilization Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a
utilization fee of the Applicable Rate per annum times the Total Outstandings on
each day that the Total Outstandings plus the "Total Outstandings" under the
Other Credit Agreement exceed 50% of the actual daily amount of the Aggregate
Commitments plus the "Aggregate Commitments" under the Other Credit Agreement.
The utilization fee shall be due and payable quarterly in arrears on the first
Business Day of each January, April, July and October for the period ended the
prior Business Day, commencing with the first such date to occur after the
Closing Date, and on the Maturity Date for the period ended on the Maturity
Date. The utilization fee shall be calculated quarterly in arrears. The
utilization fee shall accrue at all times, including at any time during which
one or more of the conditions in Article IV is not met.
(c) Other Fees. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall
have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and shall
not be refundable for any reason whatsoever.
2.08 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.10(a),
bear interest for one day.
2.09 EVIDENCE OF DEBT. The Loans made by each Lender shall be evidenced
by one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Loans made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
2.10 PAYMENTS GENERALLY.
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(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 3:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.
(c) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that
such Borrower or such Lender, as the case may be, has timely made such payment
and may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at
the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per ------------------- annum equal to the Federal Funds Rate from
time to time in effect. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's
Loan included in the applicable Borrowing. If such Lender does not pay
such amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent may make a demand therefor upon the Borrower,
and the Borrower shall, within two Business Days, pay such amount to
the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed
to relieve any Lender from its obligation to fulfill its Commitment or
to prejudice any rights which the Administrative Agent or the Borrower
may have against any Lender as a result of any default by such Lender
hereunder.
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A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Loan set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall promptly return such funds (in like funds as received
from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans are several
and not joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.11 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it,
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Loans made by them as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Loans;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender under any of the circumstances
described in Section 9.06 (including pursuant to any settlement entered into by
the purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered, without further
interest thereon. The Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 9.09) with respect to such participation as fully as if such Lender
were the direct creditor of such Borrower in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
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2.12 INCREASE IN COMMITMENTS.
(a) Provided there exists no Default, upon notice to the Administrative
Agent (which shall promptly notify the Lenders), the Borrower may from time to
time after the Closing Date request an increase in the Aggregate Commitments by
an amount (for all such requests) not exceeding $75,000,000. At the time of
sending such notice, the Borrower (in consultation with the Administrative
Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of
delivery of such notice to the Lenders). Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Pro Rata Share of such requested increase. Any Lender not
responding within such time period shall be deemed to have declined to increase
its Commitment. The Administrative Agent shall notify the Borrower and each
Lender of the Lenders' responses to each request made hereunder. To achieve the
full amount of a requested increase, the Borrower may also invite additional
Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.
(b) If the Aggregate Commitments are increased in accordance with this
Section, the Administrative Agent and the Borrower shall determine the effective
date (the "Increase Effective Date") and the final allocation of such increase.
The Administrative Agent shall promptly notify the Borrower and the Lenders of
the final allocation of such increase and the Increase Effective Date. As a
condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of the Borrower dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of such Borrower (i) certifying and attaching the resolutions adopted by
the Borrower approving or consenting to such increase, and (ii) certifying that,
before and after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Loan Documents are true and
correct on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct as of such earlier date, and except that for
purposes of this Section 2.12, the representations and warranties contained in
Section 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to Section 6.01, and (B) no Default exists.
(c) Upon the effectiveness of any increase pursuant to this Section
2.12 of the Aggregate Commitments and any resulting adjustment in a Pro Rata
Share, the Lenders will purchase from each other and sell to each other
outstanding Loans sufficient to cause the outstanding Loans of each Lender to
equal its Pro Rata Share (as so adjusted) of the aggregate outstanding Loans. If
any Lender shall suffer a loss or incur an expense as a result of the
effectiveness of such purchase or sale being during an Interest Period, the
Borrower shall reimburse such Lender the amount of such loss or expense. Each
such Lender shall furnish the Borrower with a certificate setting forth the
basis for determining the amount to be paid to it hereunder.
(d) This Section shall supersede any provisions in Sections 2.11 or
9.01 to the contrary.
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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable Laws, and (iv) within 30 days after the date of
such payment, the Borrower shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes"). If the Borrower shall be required to deduct or
pay any Taxes or Other Taxes from or in respect of any sum payable under any
Loan Document to the Administrative Agent or any Lender, the Borrower shall also
pay to the Administrative Agent or to such Lender, as the case may be, at the
time interest is paid, such additional amount that the Administrative Agent or
such Lender specifies is necessary to preserve the after-tax yield (after
factoring in all taxes in respect of such additional amount, including taxes
imposed on or measured by net income) that the Administrative Agent or such
Lender would have received if such Taxes or Other Taxes had not been imposed.
(c) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including additions to
tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority; provided,
however, any claim under this Section 3.01 must be reasonable. Payment under
this subsection (c) shall be made within 30
23
days after the date the Lender or the Administrative Agent makes a demand
therefor, stating in reasonable detail the basis for the indemnification claim.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans or Federal Funds Rate Loans
to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted. If the
Borrower is required to so prepay any such Eurodollar Rate Loan, then
concurrently with such prepayment, the Borrower may borrow from the affected
Lender a Base Rate Loan or a Federal Funds Rate Loan in the amount of such
prepayment. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine
that for any reason adequate and reasonable means do not exist for determining
the Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or that the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the Borrower and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be
suspended until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Borrower may
revoke any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Borrowing of Base Rate Loans in the amount
specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans, or a reduction in
the amount received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements
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utilized, as to Eurodollar Rate Loans, in the determination of the Eurodollar
Rate, then from time to time upon demand of such Lender (with a copy of such
demand to the Administrative Agent), the Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such increased cost or
reduction; provided, however, the Borrower shall not be required to pay any such
expense if the applicable Lender shall not notify the Borrower of such expense
within 180 days of such Lender being aware of its incurrence.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction; provided, however, the Borrower shall not be
required to pay any such expense if the applicable Lender shall not notify the
Borrower of such expense within 180 days of such Lender being aware of its
incurrence.
(c) Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for the Borrower to pay additional amounts
pursuant to this Section 3.04 and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan or Federal Funds Rate Loan on a day other than the
last day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan on
the date or in the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 9.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching
25
deposit or other borrowing in the London interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) The Administrative Agent or any Lender claiming compensation under
Article III shall deliver to the Borrower a certificate of the Administrative
Agent or any Lender claiming compensation under this Article III setting forth
the additional amount or amounts to be paid to it hereunder. Such certificate
shall be presumptively correct in the absence of manifest error. In determining
such amount, the Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section
3.01 or 3.04, the Borrower may replace such Lender in accordance with Section
9.16.
3.07 SURVIVAL. All of the Borrower's obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO LOANS
4.01 CONDITIONS OF INITIAL LOANS. The obligation of each Lender to
make its initial Loan hereunder is subject to the condition that the
Administrative Agent have received on or before the Closing Date all of the
following, in form and substance satisfactory to the Administrative Agent and
each Lender, and in sufficient copies for each Lender:
(a) Credit Agreement and Notes. This Agreement and, if requested, the
Notes, executed by each party thereto;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors
of the Borrower authorizing the transactions contemplated hereby,
certified as of the Closing Date by the Secretary or an Assistant
Secretary of the Borrower; and
(ii) A certificate of the Secretary or Assistant Secretary
of the Borrower certifying the names and true signatures of the
officers of the Borrower authorized to execute, deliver and perform, as
applicable, this Agreement, and all other Loan Documents to be
delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation and the
by-laws of the Borrower as in effect on the Closing Date, certified by
the Secretary or Assistant Secretary of the Borrower as of the Closing
Date; and
(ii) a good standing certificate for the Borrower from the
Secretary of State (or similar, applicable Governmental Authority) of
its state of incorporation;
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(d) Legal Opinions. An opinion of (i) Winston & ▇▇▇▇▇▇ LLP, counsel to
the Borrower and (ii) ▇▇▇▇ ▇. Berkshire, general counsel of the Borrower
addressed to the Agent and the Lenders, substantially in the forms of Exhibits
E-1 and E-2.
(e) Payment of Fees. Evidence of payment by the Borrower of all accrued
and unpaid fees, costs and expenses to the extent then due and payable on the
Closing Date, together with Attorney Costs of Bank of America to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute Bank of America's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling of
accounts between the Borrower and Bank of America upon an invoice itemizing
charges); including any such costs, fees and expenses arising under or
referenced in Sections 2.07 and 9.04;
(f) Certificate. A certificate signed by a Responsible Officer, dated
as of the Closing Date, stating that:
(i) the representations and warranties contained in Article V are true
and correct on and as of such date, as though made on and as of such date;
(ii) no Default exists or would result from the initial
Borrowing;
(iii) there has occurred since December 31, 2002, no event
or circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect; and
(iv) immediately upon funding hereunder and under the
Other Credit Agreement, the 364-Day Credit Agreement and the 3-Year
Credit Agreement, both dated as of August 10, 2000 by and among the
Borrower, Nuveen Investments, certain financial institutions, Bank of
America, as Administrative Agent, Citicorp USA, Inc., as Syndication
Agent and The Chase Manhattan Bank, as Document Agent shall be paid in
full and terminated; and
(g) Other Documents. Such other approvals, opinions, documents or
materials as the Administrative Agent or any Lender may request.
4.02 CONDITIONS TO ALL BORROWINGS. The obligation of each Lender to
make any Loan to be made by it (including its initial Loan) is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date:
(a) Loan Notice. The Administrative Agent shall have received a Loan
Notice;
(b) Continuation of Representations and Warranties. The representations
and warranties in Article V shall be true and correct on and as of such
Borrowing Date with the same effect as if made on and as of such Borrowing Date
(except to the extent such representations and warranties expressly refer to an
earlier date, in which case they shall be true and correct as of such earlier
date); and
(c) No Existing Default. No Default shall exist or shall result from
such Borrowing.
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Each Loan Notice submitted by the Borrower hereunder shall constitute a
representation and warranty by the Borrower hereunder, as of the date of each
such notice and as of each Borrowing Date, that the conditions in Section 4.02
are satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender that:
5.01 CORPORATE EXISTENCE; CONDUCT OF BUSINESS. The Borrower and its
Subsidiaries (a) are corporations duly incorporated, validly existing and in
good standing under the Laws of their respective jurisdictions of incorporation,
(b) are duly qualified and in good standing as foreign corporations in each
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where failure to be so qualified
will not have a Material Adverse Effect, and (c) possess all licenses,
registrations and authorizations from and with any Governmental Authority,
self-regulatory organization or securities exchange necessary or material to the
conduct of its business as presently conducted. Nuveen Investments is (a) a
broker-dealer duly registered under the Exchange Act, (b) a member in good
standing of the NASD, (c) not in arrears in regard to any assessment of the
SIPC, and (d) has received no notice from the SEC, MSRB, NASD or any other
Governmental Authority, self-regulatory organization or securities exchange of
any alleged rule violation or other circumstance which could reasonably be
expected to have a Material Adverse Effect.
5.02 AUTHORIZATION AND VALIDITY. The Borrower has all requisite
power and authority (corporate and otherwise) to execute and deliver each of the
Loan Documents to which it is a party and to perform its obligations thereunder.
The execution and delivery by the Borrower of the Loan Documents to which it is
a party and the performance of its obligations thereunder have been duly
authorized by proper corporate proceedings and such Loan Documents constitute
legal, valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar Laws affecting the enforcement of
creditors' right generally or by general principles of equity limiting the
availability of equitable remedies.
5.03 COMPLIANCE WITH LAWS AND CONTRACTS. The Borrower and its
Subsidiaries have complied in all material respects with all applicable Laws,
statutes, rules, regulations, orders and restrictions of any Governmental
Authority, self-regulatory organization or securities exchange having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective properties (including, without limitation the Exchange Act, the
Advisers Act, the Investment Company Act and the applicable rules and
regulations of the SEC, NASD, NYSE, MSRB and CFTC), except where the failure to
so comply could not reasonably be expected to have a Material Adverse Effect.
Neither the execution and delivery by the Borrower of the Loan Documents, the
application of the proceeds of its Loans, the consummation of any transaction
contemplated by the Loan Documents, nor compliance with the provisions of the
Loan Documents will, or at the relevant time did, (a) violate any law, rule,
regulation (including Regulations T, U and X), order, writ, judgment,
injunction, decree or award binding on the Borrower or any Subsidiary thereof or
the Borrower's or any such Subsidiary's charter, articles
28
or certificate of incorporation or by-laws, (b) violate the provisions of or
require the approval or consent of any party to any indenture, instrument or
agreement to which the Borrower or any such Subsidiary is a party or is subject,
or by which it, or its property, is bound or conflict with or constitute a
default thereunder, or result in the creation or imposition of any Lien (other
than Liens permitted by Section 6.17) in, of or on the property of the Borrower
or any such Subsidiary pursuant to the terms of any such indenture, instrument
or agreement, or (c) require the consent or approval of any Person, except for
any violation of, or failure to obtain an approval or consent required under,
any such indenture, instrument or agreement that could not have a Material
Adverse Effect.
5.04 GOVERNMENTAL CONSENTS. No order, consent, approval,
qualification, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of, any
Governmental Authority, self-regulatory organization or securities exchange is
necessary or required in connection with the execution, delivery, consummation
performance of, or the legality, validity, binding effect or enforceability of,
any of the Loan Documents, the application of the proceeds of the Loans, or the
consummation of any other transaction contemplated by the Loan Documents.
Neither the Borrower nor any Subsidiary thereof is in default under or in
violation of any foreign, federal, state or local law, rule, regulation, order,
writ, judgment, injunction, decree or award binding upon or applicable to the
Borrower or such Subsidiary, in each case the consequence of which default or
violation could reasonably be expected to have a Material Adverse Effect.
5.05 FINANCIAL STATEMENTS. The Borrower has heretofore furnished to
each of the Lenders (a) the December 31, 2002 audited consolidated financial
statements of the Borrower and its Subsidiaries and (b) the March 31, 2003
unaudited consolidated financial statements of the Borrower and its
Subsidiaries, (collectively, the "Financial Statements"). Each of the Financial
Statements was prepared in accordance with GAAP and fairly presents the
consolidated financial condition, results of operations, changes in
stockholders' equity and cash flows of the Borrower and its Subsidiaries (or of
the applicable Subsidiary, as the case may be) at such dates and for the
respective periods then ended (except, in the case of such unaudited statements,
for normal year-end audit adjustments).
5.06 MATERIAL ADVERSE CHANGE. No material adverse change in the
business, Property, condition (financial or otherwise), performance, or results
of operations of the Borrower and its Subsidiaries taken as a whole has occurred
since December 31, 2002.
5.07 TAXES. The Borrower and its Subsidiaries have filed or caused
to be filed on a timely basis and in correct form all United States federal and
applicable state tax returns and other material tax returns which are required
to be filed and have paid all material taxes due pursuant to said returns or
pursuant to any assessment received by the Borrower or any Subsidiary, except
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with GAAP. As of the date
hereof, the United States income tax returns of the Borrower on a consolidated
basis have been audited by the Internal Revenue Service through its Fiscal Year
ending December 31, 1997 and, to the Borrower's knowledge, there are no pending
audits or investigations regarding the Borrower's or its Subsidiaries' federal,
state or local tax returns which could reasonably be expected to have a Material
Adverse Effect. No tax liens have been filed and no claims are being asserted
with
29
respect to any such taxes which could reasonably be expected to have a Material
Adverse Effect. The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of any taxes or other governmental charges are
in accordance with GAAP.
5.08 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, proceeding, inquiry or investigation by any Governmental Authority,
self-regulatory organization or securities exchange pending or, to the knowledge
of any of the Borrower's officers, threatened against or affecting the Borrower
or any Subsidiary thereof or any of their respective Properties which could
reasonably be expected to have a Material Adverse Effect or to prevent, enjoin
or unduly delay the making of the Loans or the consummation of the transactions
contemplated by this Agreement. Neither the Borrower nor any Subsidiary thereof
has any material contingent obligations not provided for or disclosed in the
Financial Statements.
5.09 SUBSIDIARIES. Schedule 5.09 hereto contains an accurate list
of all of the Borrower's existing Subsidiaries as of the date hereof, setting
forth their respective jurisdictions of incorporation and the percentage of
their capital stock owned by the Borrower or other Subsidiaries. Except as set
forth on Schedule 5.09 and except for Seed Money, as of the date hereof, the
Borrower does not own or hold, directly or indirectly, any capital stock or
equity security of, or any equity partnership interest in, any Person other than
such Subsidiaries.
5.10 ERISA. Except as disclosed on Schedule 5.10, neither the
Borrower nor any other member of the Controlled Group maintains any Single
Employer Plans, and no Single Employer Plan has any Unfunded Liability. Neither
the Borrower nor any other member of the Controlled Group maintains, or is
obligated to contribute to, any Multiemployer Plan or has incurred, or is
reasonably expected to incur, any withdrawal liability to any Multiemployer
Plan. Each Plan complies in all material respects with all applicable
requirements of law and regulations. Neither the Borrower nor any member of the
Controlled Group has, with respect to any Plan, failed to make any contribution
or pay any amount required under Section 412 of the Code or Section 302 of ERISA
or the terms of such Plan which could reasonably be expected to be in excess of
$5,000,000. There are no pending or, to the knowledge of the Borrower,
threatened claims, actions, investigations or lawsuits against any Plan, any
fiduciary thereof, or the Borrower or any member of the Controlled Group with
respect to a Plan which could reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any member of the Controlled Group has engaged
in any prohibited transaction (as defined in Section 4975 of the Code or Section
406 of ERISA) in connection with any Plan which would subject such Person to any
material liability. Within the last five years neither the Borrower nor any
member of the Controlled Group has engaged in a transaction which resulted in a
Single Employer Plan with an Unfunded Liability being transferred out of the
Controlled Group. No Termination Event has occurred or is reasonably expected to
occur with respect to any Plan which is subject to Title IV of ERISA.
5.11 DEFAULTS. No Default has occurred and is continuing.
5.12 FEDERAL RESERVE REGULATIONS. Neither the Borrower nor any
Subsidiary thereof is engaged, directly or indirectly, principally, or as one of
its important activities, in the business of extending or arranging for the
extension of, credit for the purpose of purchasing or carrying Margin Stock. No
part of the proceeds of any Loan will be used in a manner which would
30
violate, or result in any violation of, Regulation T, Regulation U or Regulation
X. Neither the making of a Loan hereunder or the use of the proceeds thereof
will violate or be inconsistent with the provisions of, Regulation T, Regulation
U or Regulation X. Following the application of the proceeds of the Loans, less
than 25% of the value (as determined by any reasonable method) of the assets of
the Borrower and its Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder taken as a whole have been, and will
continue to be, represented Margin Stock.
5.13 PUBLIC UTILITY HOLDING COMPANY; INVESTMENT COMPANY. Neither
the Borrower nor any Subsidiary thereof is subject to regulation under the
Public Utility Holding Company Act of 1935, as amended. The Borrower is not, and
after giving effect to any Loan will not be, an "investment company" or a
company controlled by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
5.14 CERTAIN FEES. No broker's or finder's fee or commission was,
is or will be payable by the Borrower or any Subsidiary thereof with respect to
any of the transactions contemplated by this Agreement. The Borrower hereby
agrees to indemnify the Administrative Agent and the Lenders against, and agrees
that it will hold each of them harmless from, any claim, demand or liability for
any broker's finder's fees or commissions alleged to have been incurred by the
Borrower in connection with any of the transactions contemplated by this
Agreement and any expenses (including, without limitation, attorneys' fees and
time charges of attorneys for the Administrative Agent or any Lender, which
attorneys may be employees of the Administrative Agent or any Lender) arising in
connection with any such claim, demand or liability. No other similar fee or
commissions will be payable by the Borrower or any Subsidiary thereof for any
other services rendered to the Borrower or such Subsidiary thereof ancillary to
any of the transactions contemplated by this Agreement.
5.15 OWNERSHIP OF PROPERTIES. The Borrower and its Subsidiaries
have a subsisting leasehold interest in, or good and marketable title, free of
all Liens, other than those permitted by Section 6.17, to all of the properties
and assets reflected in the Financial Statements as being owned by it, except
for assets sold, transferred or otherwise disposed of in the ordinary course of
business since the date thereof and such defects of title and Liens as could
not, individually or in the aggregate, have a Material Adverse Effect. To the
knowledge of the Borrower, there are no actual, threatened or alleged defaults
with respect to any leases of real property under which the Borrower or any
Subsidiary thereof is lessee or lessor which could reasonably be expected to
have a Material Adverse Effect.
5.16 MATERIAL AGREEMENTS. Other than as provided in the Other
Credit Agreement and the Indebtedness issued pursuant to the Offering Memorandum
dated July 2003. Neither the Borrower nor any Subsidiary thereof is a party to
any agreement or instrument or subject to any charter or other corporate
restriction which could reasonably be expected to have a Material Adverse Effect
or which restricts or imposes conditions upon the ability of any Subsidiary
thereof to (a) pay dividends or make other distributions on its capital stock,
(b) make loans or advances to the Borrower, (c) repay loans or advances from the
Borrower, or (d) grant Liens to the Agent to secure the Obligations. Neither the
Borrower nor any Subsidiary thereof is in default in the performance, observance
or fulfillment of any of the obligations, covenants or
31
conditions contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
5.17 INSURANCE. The Borrower and its Subsidiaries maintain with
financially sound and reputable insurance companies insurance on their Property
in such amounts and covering such risk as is consistent with sound business
practice.
5.18 DISCLOSURE. None of the (a) information, exhibits or reports
furnished or to be furnished by the Borrower or any Subsidiary thereof to the
Administrative Agent or to any Lender in connection with the negotiation of the
Loan Documents, taken as a whole, or (b) representations or warranties of the
Borrower or any Subsidiary thereof contained in this Agreement, the other Loan
Documents or any other document, certificate or written statement furnished to
the Administrative Agent or the Lenders by or on behalf of the Borrower or any
Subsidiary thereof pursuant to this Agreement contained, contains or will
contain any untrue statement of a material fact or omitted, omits or will omit
to state a material fact necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances in which they
were made. There is no fact known to the Borrower (other than matters of a
general economic nature) that has had or could reasonably be expected to have a
Material Adverse Effect and that has not been disclosed herein or in such other
documents, certificates and statements furnished to the Lenders for use in
connection with the transactions contemplated by this Agreement.
5.19 PARI PASSU. The Obligations shall rank at least pari passu
with other unsecured Indebtedness of the Borrower.
ARTICLE VI.
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.01 FINANCIAL REPORTING. The Borrower will maintain, for itself
and each Subsidiary, a system of accounting established and administered in
accordance with GAAP, consistently applied, and will furnish to the
Administrative Agent, with sufficient copies for the Lenders:
(a) As soon as practicable and in any event within 90 days after the
close of each of its fiscal years, an unqualified audit report certified by KPMG
or other independent certified public accountants, acceptable to the Lenders,
prepared in accordance with GAAP on a consolidated and consolidating basis
(consolidating statements need not be certified by such accountants) for itself
and its Subsidiaries, including balance sheets as of the end of such period and
related statements of income, and changes in stockholders' equity and cash flows
(provided that so long as the common stock of the Borrower is listed for trading
on the NYSE, the foregoing requirement as to the Borrower's consolidated
financial statements may be satisfied by the delivery of the Borrower's Annual
Report to Stockholders and its Annual Report on Form 10-K filed with the SEC
containing such information) and accompanied by (i) any management letter
prepared by said accountants and (ii) a certificate of said accountants that, in
the course of the
32
examination necessary for their certification of the foregoing, they have
obtained no knowledge of any Default, or if, in the opinion of such accountants,
any Default shall exist, stating the nature and status thereof.
(b) As soon as practicable and in any event within 45 days after the
close of the first three fiscal quarters of each of its fiscal years, for itself
and its Subsidiaries, consolidated unaudited balance sheets as at the close of
each such period and consolidated statements of income, changes in stockholders'
equity and cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its chief financial officer (provided
that so long as the common stock of the Borrower is listed for trading on the
NYSE, the foregoing requirement as to the Borrower's consolidated financial
statements may be satisfied by the delivery of the Borrower's Quarterly Report
on Form 10-Q as filed with the SEC containing such information.
(c) Together with the financial statements required by clauses (a) and
(b) above and additionally for purposes of determining the Applicable Rate
within 45 days after the close of the fourth fiscal quarter of each fiscal year
(which preliminary determination shall be subject to adjustment upon receipt of
audited annual financial statements (or Form 10-K) and shall not be deemed to
constitute a misrepresentation or breach if prepared in good faith and the
audited numbers differ from the unaudited fourth quarter results), a Compliance
Certificate signed by its chief financial officer showing the calculations
necessary to determine compliance with this Agreement and stating that no
Default exists, or if any Default exists, the nature and thereof.
(d) As soon as possible and in any event within 10 days after any
officer of the Borrower knows that any Termination Event has occurred with
respect to any Plan, a statement, signed by the chief financial officer of the
Borrower, describing said Termination Event and the action which the Borrower
proposes to take with respect thereto.
(e) As soon as possible and in any event within 10 days after any
officer of the Borrower learns thereof, notice of the assertion or commencement
of any claim, action, litigation, suit or proceeding against or affecting the
Borrower or any Subsidiary, including any investigation or proceeding commenced
by the SEC, NASD, MSRB, NYSE or any other Governmental Authority,
self-regulatory organization or securities exchange, which could have a Material
Adverse Effect.
(f) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy statements so
furnished.
(g) Within 15 days after the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports which the
Borrower or any of its Subsidiaries files with the Securities and Exchange
Commission.
(h) Such other information (including non-financial information) as the
Administrative Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01 (to the
extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower posts such documents,
or provides a link thereto on the Borrower's website
33
on the Internet at the website address listed on Schedule 9.02; or (ii) on which
such documents are posted on the Borrower's behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that: (i) the Borrower shall
deliver paper copies of such documents to the Administrative Agent or any Lender
that requests the Borrower to deliver such paper copies until a written request
to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent and each Lender of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 6.01(c)
to the Administrative Agent and each of the Lenders. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
6.02 USE OF PROCEEDS. The Borrower will use proceeds of its Loans
for general corporate purposes, including Purchases and working capital, of the
Borrower and its Subsidiaries. The Borrower will not and will not permit any
Subsidiary thereof to, use any of the proceeds of its Loans to purchase or carry
any Margin Stock in violation of Regulation T, Regulation U or Regulation X, or
to finance the Purchase of any Person which has not been approved and
recommended by the board of directors (or functional equivalent thereof) of such
Person.
6.03 NOTICE OF DEFAULT. Within 5 days after any officer of the
Borrower has knowledge thereof, the Borrower will give notice in writing to the
Lenders of the occurrence of (a) any Default and (b) any other event or
development, financial or other, relating specifically to the Borrower or any of
its Subsidiaries (and not of a general economic or political nature) which could
reasonably be expected to have a Material Adverse Effect.
6.04 CONDUCT OF BUSINESS. The Borrower will, and will cause each of
its Subsidiaries to,(a) subject to Section 6.12(c), preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of
its incorporation, (b) maintain all registrations, licenses, consents, approvals
and authorizations from and with any Governmental Authority, self-regulatory
organization or securities exchange necessary or material to the conduct of its
business, and (c) qualify and remain qualified as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where failure to qualify could not
have a Material Adverse Effect. The Borrower will not, and will not permit any
of its Subsidiaries to, engage in any material line of business substantially
different from those lines of business carried on by them on the date hereof
(provided that further entry into the financial services business, as well as
service businesses related thereto, will not be prohibited by this Section
6.04).
6.05 TAXES. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct in all material respects United States federal
and applicable foreign, state
34
and local tax returns required by applicable law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except (i) those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside and (ii) those, with respect to which failure to file or pay, the
Borrower and its Subsidiaries would not reasonably be expected to have an
aggregate liability in excess of $1,000,000.
6.06 INSURANCE. The Borrower will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance companies insurance
in such amounts and covering such risks as is consistent with sound business
practice, and the Borrower will furnish to the Administrative Agent and any
Lender upon request full information as to the insurance carried.
6.07 COMPLIANCE WITH LAWS; MATERIAL CONTRACTUAL OBLIGATIONS. The
Borrower will, and will cause each Subsidiary to, comply with all Laws
(including, without limitation, the Exchange Act, the Advisers Act and the
Investment Company Act), orders, writs, judgments, injunctions, decrees or
awards to which it may be subject, the failure to comply with which could
reasonably be expected to have a Material Adverse Effect and with all
Contractual Obligations, the failure to comply with which could reasonably be
expected to have a Material Adverse Effect.
6.08 MAINTENANCE OF PROPERTIES. The Borrower will, and will cause
each Subsidiary to, do all things necessary to maintain, preserve, protect and
keep all material portions of its Property in good repair, working order and
condition (other than ordinary wear and tear), and make all necessary and proper
repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times; provided that this Section
shall not prevent the Borrower or any Subsidiary from discontinuing the
operation and maintenance of any of its properties if such discontinuance is
desirable in the conduct of its business and the Borrower has concluded that
such discontinuance would not, individually or in the aggregate, have a Material
Adverse Effect.
6.09 INSPECTION. The Borrower will, and will cause each Subsidiary
to, permit the Administrative Agent and the Lenders, upon at least two Business
Days' notice (unless a Default has occurred and is continuing) and during normal
business hours, by their respective representatives and agents, to inspect any
of the Property, corporate books and financial records of the Borrower and each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and to
be advised as to the same by, their respective officers. The Borrower will keep
or cause to be kept, and cause each Subsidiary to keep or cause to be kept,
appropriate records and books of account in which complete entries are to be
made reflecting its and their business and financial transactions, such entries
to be made in accordance with GAAP consistently applied.
6.10 OWNERSHIP OF SUBSIDIARIES. The Borrower will continue to own
directly or indirectly, free and clear of all Liens and restrictions, 100% of
the outstanding shares of capital stock of Nuveen Investments, Nuveen Advisory,
Nuveen Institutional, Nuveen Asset Management, ▇▇▇▇▇▇▇▇▇▇▇, Symphony Asset
Management, and NWQ Investment Management
35
Company, Inc. other than in the case of any of the foregoing, shares owned by
employees thereof through employee related compensation and stock option plans.
6.11 INDEBTEDNESS. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) the Loans;
(b) the "Loans" under the Other Credit Agreement, as amended, in
amounts not in excess of $200,000,000 at any time outstanding;
(c) Short-term Indebtedness incurred in connection with the purchase of
municipal, corporate and treasury bonds and other securities in the ordinary
course of business;
(d) Indebtedness of any Subsidiary owed to the Borrower or any
Wholly-Owned Subsidiary;
(e) securities sold under agreements to repurchase (to the extent such
obligations constitute Indebtedness) and Rate Hedging Obligations incurred in
the ordinary course of business;
(f) Contingent Obligations permitted by Section 6.16;
(g) contingent pay-out and similar obligations relating to prior
acquisitions by the Borrower and to acquisitions permitted hereunder;
(h) unsecured Indebtedness relating to the financing of Distribution
Receivables in an aggregate principal amount not exceeding the amount of such
Distribution Receivables;
(i) unsecured Indebtedness payable to The St. ▇▇▇▇ Companies, Inc. in
an aggregate principal amount not in excess of $250,000,000 at any time
outstanding with terms no more restrictive on the Borrower than the terms of
this Agreement and terms providing that no payments would be made on such
Indebtedness if before or after giving effect to such payment an Event of
Default would be in existence;
(j) unsecured Indebtedness in an amount not in excess of $300,000,000
with no maturity or mandatory prepayments until after the Maturity Date issued
pursuant to the terms described in the Offering Memorandum dated July 2003; and
(k) other unsecured Indebtedness not otherwise permitted by this
Section 6.11 in an aggregate principal amount for the Borrower and all its
Subsidiaries not exceeding $20,000,000.
6.12 MERGER. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except that
(a) a Subsidiary may merge into the Borrower or any Wholly-Owned Subsidiary of
the Borrower, (b) the Borrower or any Subsidiary may merge or consolidate with
any other Person so long as the Borrower or such Subsidiary is the continuing or
surviving corporation and, prior to and after giving effect to such merger or
36
consolidation, no Event of Default or Default shall exist, and (c) any
Subsidiary may enter into a merger or consolidation as a means of effecting a
disposition permitted by Section 6.13.
6.13 SALE OF ASSETS. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell, transfer or otherwise dispose of its Property, to
any other Person except for (a) sales of municipal, corporate and treasury
bonds, and other securities sold in the ordinary course of business, (b)
Distribution Receivables sold to a third party without recourse to the Borrower
or any of its Subsidiaries in order to effect a securitization of such
Receivables and, (c) leases, sales, transfers or other dispositions of its
Property that, together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other than sales of
municipal, corporate and treasury bonds, and other securities sold in the
ordinary course of business) as permitted by this Section 6.13 since the date
hereof, do not constitute a Substantial Portion of the Property of the Borrower
and its Subsidiaries.
6.14 SALE OF ACCOUNTS. The Borrower will not, nor will it permit
any Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse, other than in the ordinary course of
business.
6.15 INVESTMENTS AND PURCHASES. The Borrower will not, nor will it
permit an Subsidiary to, make or suffer to exist any Investments (including,
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Purchases, except:
(a) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described on Schedule 5.9 hereto;
(b) Securities purchased under agreements to resell; municipal,
corporate and treasury bonds; money market funds as defined in Rule 2a-7 of the
Investment Company Act; and other securities purchased in the ordinary course of
business;
(c) Obligations of, or fully guaranteed by, the United States of
America; commercial paper and other notes and securities rated investment grade
by a national securities rating agency; demand deposit accounts maintained in
the ordinary course of business; and bankers acceptances and certificates of
deposit issued by and time deposits with commercial banks (whether domestic or
foreign) having capital and surplus in excess of $100,000,000;
(d) Additional Purchases of or Investments in the stock of Subsidiaries
or the capital stock, assets, obligations or other securities of or interest in
other Persons provided that (i) each such Person shall be (x) incorporated,
organized or otherwise formed under the Laws of any state of the United States,
or under the Laws of Canada, any member country of the European Economic Union,
Switzerland, Liechtenstein, Japan, Australia or New Zealand, and (y) engaged in
a line of business not substantially different from those lines of business
carried on by the Borrower and its Subsidiaries on the date hereof (which for
this purpose shall be deemed to include the financial services business as well
as service businesses related thereto), (ii) the transaction shall have been
approved and recommended by the board of directors (or functional equivalent
thereof ) of such Person, and (iii) no Default shall have occurred and be
continuing
37
either immediately before or after giving effect to such transaction and No
Material Adverse Effect would result therefrom;
(e) Seed Money; and
(f) The creation or acquisition of Subsidiaries that are registered
investment advisors to mutual funds or other investment advisory clients or
otherwise engaged in the financial services business, as well as service
businesses related thereto.
6.16 CONTINGENT OBLIGATIONS. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Contingent Obligation
(including, without limitation, any Contingent Obligation with respect to the
obligations of a Subsidiary), except (a) by endorsement of instruments for
deposit or collection in the ordinary course of business; and (b) pursuant to
contingent note purchase agreements in respect of loans to employees of
Subsidiaries of the Borrower in amounts not in excess of the lesser of (i) the
sum of the unused Commitments and the unused "Commitments" under the Other
Credit Agreement, or (ii) $55,000,000, at any time outstanding.
6.17 LIENS. The Borrower will not, nor will it permit any
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter can
be paid without penalty, or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books;
(b) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure the payment of obligations not more than 60 days past due
or which are being contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Borrower or the Subsidiaries; and
(e) Liens relating to Indebtedness permitted by Sections 6.11(c) and
6.11(e).
6.18 AFFILIATES. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except (a) in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary
38
than the Borrower or such Subsidiary would obtain in a comparable arms-length
transaction and (b) transactions among the Borrower and Wholly-Owned
Subsidiaries of the Borrower.
6.19 CHANGE IN CORPORATE STRUCTURE; FISCAL YEAR. The Borrower shall
not, nor shall it permit any Subsidiary to, (a) permit any amendment or
modification to be made to its certificate or articles of incorporation or
by-laws which is materially adverse to the interests of the Lenders (provided
that the Borrower shall notify the Agent of any other amendment or modification
thereto as soon as practicable thereafter) or (b) change its fiscal year to end
on any date other than December 31 of each year.
6.20 INCONSISTENT AGREEMENTS. Other than as provided in the Other
Credit Agreement and the Indebtedness issued pursuant to the Offering Memorandum
dated July 2003, the Borrower shall not, nor shall it permit any Subsidiary to,
enter into any indenture, agreement, instrument or other arrangement which, (a)
directly or indirectly prohibits or restrains, or has the effect of prohibiting
or restraining, or imposes materially adverse conditions upon, the incurrence of
the Obligations, the granting of Liens to secure the Obligations, the amending
of the Loan Documents or the ability of any Subsidiary to (i) pay dividends or
make other distributions on its capital stock, (ii) make loans or advances to
the Borrower, or (iii) repay loans or advances from the Borrower or (b) contains
any provision which would be violated or breached by the making of Loans or by
the performance by the Borrower or any Subsidiary of any of its obligations
under any Loan Document.
6.21 FINANCIAL COVENANTS. The Borrower on a consolidated basis with
its Subsidiaries shall:
(a) Minimum Net Worth. At all times after the date hereof maintain a
minimum Net Worth of at least $360,000,000.
(b) Leverage Ratio. Maintain a Leverage Ratio of not more than 2.75 to
1.
6.22 ERISA COMPLIANCE. The Borrower will (a) fulfill, and cause
each member of the Controlled Group to fulfill, its obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan,
except where the failure to do so would not result in any liabilities to members
of the Controlled Group in excess of $5,000,000, (b) comply, and cause each
member of the Controlled Group to comply, with all applicable provisions of
ERISA and the Code respect to each Plan, except where such failure or
noncompliance individually or in the aggregate would not have a Material Adverse
Effect and (c) not, and not permit any member of the Controlled Group to, (i)
seek a waiver of the minimum funding standards under ERISA, (ii) terminate or
withdraw from any Plan or (iii) take any other action with respect to any Plan
which would reasonably be expected to entitle the PBGC to terminate, impose
liability in respect of, or cause a trustee to be appointed to administer, any
Plan, unless the actions or events described in foregoing clauses (i), (ii) or
(iii) individually or in the aggregate would not have a Material Adverse Effect.
39
ARTICLE VII.
DEFAULTS
7.01 DEFAULTS. The occurrence of any one or more of the following
events shall constitute an Event of Default:
(a) Representation or Warranty. Any representation or warranty made or
deemed made by or on behalf of the Borrower or any of its Subsidiaries to the
Lenders or the Administrative Agent under or in connection with this Agreement,
any other Loan Document, any Loan, or any certificate or information delivered
in connection with this Agreement or any other Loan Document shall be false in
any material respect on the date as of which made or deemed made.
(b) Non-Payment. Nonpayment of (i) any principal of any Note when due,
or (ii) any interest upon any Note or any facility fee or other fee or
obligations under any of the Loan Documents within three (3) days after the same
becomes due.
(c) Specific Defaults. The breach by the Borrower of any of the terms
or provisions of Section 6.02, Section 6.03(a), Section 6.04 or Sections 6.10
through 6.17 or Sections 6.19 through 6.22.
(d) Other Defaults. The breach by the Borrower (other than a breach
which constitutes a Default under Section 7.01(a), (b) or (c) of any of the
terms or provisions of this Agreement which is not remedied within thirty (30)
days after written notice from the Administrative Agent or any Lender.
(e) Cross-Default. Failure of the Borrower or any of its Subsidiaries
to pay any Indebtedness aggregating in excess of $10,000,000 for the Borrower
and all its Subsidiaries when due (other than contingent pay-out and similar
obligations relating to prior acquisitions of the Borrower and to acquisitions
permitted hereunder as to which a good faith dispute exists and which are being
appropriately contested); or the default by the Borrower or any of its
Subsidiaries in the performance of any term, provision or condition contained in
any agreement or agreements under which any such Indebtedness was created or is
governed, or the occurrence of any other event or existence of any other
condition, the effect of any of which is to cause, or to permit the holder or
holders of such Indebtedness to cause, such Indebtedness to become due prior to
its stated maturity; or any such Indebtedness of the Borrower or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the stated maturity
thereof.
(f) Insolvency; Voluntary Proceedings. The Borrower or any of its
Subsidiaries shall (i) have an order for relief entered with respect to it under
the Federal Bankruptcy Laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal Bankruptcy Laws as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debt under
any law relating to
40
bankruptcy, insolvency or reorganization or relief of debtors to fail or file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate action to authorize or effect any of
the foregoing actions set forth in this Section 7.01(f), (vi) fail to contest in
good faith any appointment or proceeding described in Section 7.01(g) or (vii)
become unable to pay, not pay, or admit in writing its inability to pay, its
debts generally as they become due.
(g) Involuntary Proceedings. Without the application, approval or
consent of the Borrower or any of its Subsidiaries, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Borrower or
any of its Subsidiaries or any Substantial Portion of its Property, or a
proceeding described in Section 7.01(f)(iv) shall be instituted against the
Borrower or any of Subsidiaries and such appointment continues undischarged or
such proceeding continues undismissed or unstayed for a period of sixty
consecutive days.
(h) Judgments. The Borrower or any of its Subsidiaries shall fail
within thirty days to pay, bond or otherwise discharge any judgment or order for
the payment of money of $25,000,000 or more (or multiple judgments or orders for
the payments of an aggregate amount of $25,000,000 or more), which is not stayed
on appeal or otherwise being appropriately contested in good faith and as to
which no enforcement actions have been commenced.
(i) Change in Control. Any Change in Control shall occur.
(j) SIPC. The SEC or any self-regulatory organization has notified the
SIPC pursuant to Section 5(a)(1) of the Securities Investor Protection Act of
1970 (the "SIPC Act") of facts which indicate that the Borrower or any of its
Subsidiaries is in or is approaching financial difficulty, or the SIPC shall
file an application for a protective decree with respect to the Borrower or any
of its Subsidiaries under Section 5(a)(3) of the SIPC Act.
(k) ERISA. With respect to any Plan, the Borrower or any Subsidiary
shall (a) incur any "accumulated funding deficiency" (as such term is defined in
Section 302 of ERISA) in excess of $10,000,000 whether or not waived, or permit
any Unfunded Liability to exceed $10,000,000; or (b) permit the occurrence of
any Termination Event which could result in a liability to the Borrower or an
other member of the Controlled Group in excess of $10,000,000.
7.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the commitment of each Lender to make Loans to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
41
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable, in each case without further act of the Administrative Agent or any
Lender.
7.03 APPLICATION OF FUNDS. After the exercise of remedies provided
for in Section 7.02 (or after the Loans have automatically become immediately
due and payable), any amounts received on account of the Obligations shall be
applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans, ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans, ratably among the Lenders in proportion to the
respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
ARTICLE VIII.
ADMINISTRATIVE AGENT
8.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT. Each
Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of
42
any applicable Law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties.
8.02 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
8.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by the Borrower or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of the Borrower or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower or any Affiliate thereof.
8.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under any Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders (or such greater
number of Lenders as may be expressly required hereby in any instance) and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
43
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
8.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Required
Lenders in accordance with Article VII; provided, however, that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable or
in the best interest of the Lenders.
8.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of the Borrower or any Affiliate thereof, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all applicable bank
or other regulatory Laws relating to the transactions contemplated hereby, and
made its own decision to enter into this Agreement and to extend credit to the
Borrower hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the Loan
Parties or any of their respective Affiliates which may come into the possession
of any Agent-Related Person.
8.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-
44
Related Person (to the extent not reimbursed by or on behalf of the Borrower and
without limiting the obligation of the Borrower to do so), pro rata, and hold
harmless each Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; provided, however, that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; provided, however, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Aggregate
Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.
8.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Borrower and its Affiliates as though Bank of America were not
the Administrative Agent hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding the Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such Affiliate) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights and
powers under this Agreement as any other Lender and may exercise such rights and
powers as though it were not the Administrative Agent, and the terms "Lender"
and "Lenders" include Bank of America in its individual capacity.
8.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor administrative agent for the Lenders,
which successor administrative agent shall be consented to by the Borrower at
all times other than during the existence of an Event of Default (which consent
of the Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and the Borrower, a successor administrative agent
from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent, and the term "Administrative Agent" shall mean
such successor administrative agent, and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation
45
hereunder as Administrative Agent, the provisions of this Article VIII and
Sections 9.04 and 9.05 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
8.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Borrower, the Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans and all
other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims
of the Lenders and the Administrative Agent (including any claim for
the reasonable compensation, expenses, disbursements and advances of
the Lenders and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 2.07 and 9.04) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.07 and 9.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
8.11 OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "documentation agent," "co-agent," "book manager,"
"lead manager," "arranger," "lead arranger" or "co-arranger" shall have any
right, power, obligation, liability, responsibility or duty
46
under this Agreement other than, in the case of such Lenders, those applicable
to all Lenders as such. Without limiting the foregoing, none of the Lenders or
other Persons so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders or other Persons so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE IX.
MISCELLANEOUS
9.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
the Borrower therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrower, and acknowledged by the Administrative Agent,
and each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the
written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 7.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Lenders (or any of them) hereunder or under any other Loan Document without
the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan, or (subject to clause (ii) of the third proviso to this Section
9.01) any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be
necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest at the Default Rate or (ii) to amend
any financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
to reduce any fee payable hereunder;
(e) change Section 2.11 or Section 7.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of
each Lender; or
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; and (ii) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed
47
only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.
9.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrower or the Administrative Agent, to
the address, facsimile number, electronic mail address or telephone
number specified for such Person on Schedule 9.02 or to such other
address, facsimile number, electronic mail address or telephone number
as shall be designated by such party in a notice to the other parties;
and
(ii) if to any other Lender, to the address, facsimile
number, electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower and the
Administrative Agent.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; provided, however, that notices and other communications
to the Administrative Agent pursuant to Article II shall not be effective until
actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on the Borrower,
the Administrative Agent and the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 6.01, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
48
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
9.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
9.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all costs and expenses incurred in
connection with the development, preparation, negotiation and execution of this
Agreement and the other Loan Documents and any amendment, waiver, consent or
other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all reasonable Attorney Costs, and (b) to pay or reimburse
the Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents during the
existence of an Event of Default or after acceleration of the Loans (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all reasonable Attorney
Costs. The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Administrative Agent
and the cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. All amounts due under this
Section 9.04 shall be payable within ten Business Days after demand therefor.
The agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations.
9.05 INDEMNIFICATION BY THE BORROWER. Whether or not the
transactions contemplated hereby are consummated, the Borrower shall indemnify
and hold harmless the Administrative Agent, the Arranger, each Lender and each
of their Affiliates and their directors, officers, employees, advisors and
agents (each, an "Indemnitee") from and against (and will reimburse each
Indemnitee as the same are incurred) any and all losses, claims, damages,
liabilities, and expenses (including, without limitation, the reasonable fees
and expenses of counsel and the allocated cost of internal counsel) that may be
incurred by or asserted or awarded against any Indemnitee, in each case arising
out of or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) any matters contemplated by this Agreement,
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any related transaction or any use made or proposed to be made with the proceeds
thereof unless and only to the extent that, as to any Indemnitee, it shall be
determined in a final nonappealable judgment by a court of competent
jurisdiction that such losses, claims, damages, liabilities or expenses resulted
primarily from the gross negligence or willful misconduct of such Indemnified
Party. Notwithstanding the foregoing, the Borrower shall have no obligation to
any Indemnitee in respect of losses, claims, damages, liabilities or expenses
arising from (a) disputes between Lender, the Administrative Agent and/or the
Arranger or (b) disputes between any Borrower and an Indemnitee, with respect to
which the Borrower is the prevailing party unless such losses, claims, damages,
liabilities or expenses under this clause (b) arise from the negligence (but not
gross negligence or willful misconduct) of such Indemnitee. No Indemnitee shall
be liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Agreement. The agreements in this
Section shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
9.06 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
9.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of their rights
or obligations hereunder except (i) to an Eligible Assignee in accordance with
the provisions of subsection (b) of this Section, (ii) by way of participation
in accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
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(b) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund (as defined in subsection (g) of this Section) with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned; (iii) any assignment of a Commitment must
be approved by the Administrative Agent unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 9.04 and 9.05 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and
deliver Notes to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
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(d) Any Lender may at any time, with notice to the Borrower and the
Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower's Affiliates or Subsidiaries)
(each, a "Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 9.01 that
directly affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.11 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 9.16 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent, and (ii)
unless an Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall
not include the Borrower or any of the Borrower's Affiliates or
Subsidiaries.
"Fund" means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
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"Approved Fund" means any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
9.08 CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority to which a Lender is subject (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable Laws or regulations or
by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than the Borrower. For purposes of this Section,
"Information" means all information received from the Borrower relating to the
Borrower or any of its businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Borrower, provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Notwithstanding anything herein to the contrary, "Information" shall not
include, and the Administrative Agent and each Lender may disclose without
limitation of any kind, any information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the
Administrative Agent or such Lender relating to such tax treatment and tax
structure; provided that with respect to any document or similar item that in
either case contains information concerning the tax treatment or tax structure
of the transaction as well as other information, this sentence shall only apply
to such portions of the document or similar item that relate to the tax
treatment or tax structure of the Loans and transactions contemplated hereby.
9.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower, any such notice being waived by the Borrower to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
53
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the Borrower against any and all Obligations owing to such Lender
hereunder or under any other Loan Document, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or indebtedness. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.
9.10 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
9.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
9.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Loan, and shall continue in full force and effect
as long as any Loan or any other Obligation hereunder shall remain unpaid or
unsatisfied.
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9.14 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.15 TAX FORMS. (a) (i) Each Lender that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign
Lender") shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Code (or upon accepting an assignment
of an interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Foreign Lender and entitling
it to an exemption from, or reduction of, withholding tax on all payments to be
made to such Foreign Lender by the Borrower pursuant to this Agreement) or IRS
Form W-8ECI or any successor thereto (relating to all payments to be made to
such Foreign Lender by the Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrower and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, each such Foreign Lender shall (A) promptly
submit to the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be adopted from
time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to the Borrower and the Administrative Agent of
any available exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement, (B) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Loan Documents
(for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such Foreign
Lender ceases to act for its own account with respect to any portion of
any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the
reasonable exercise of its discretion), (A) two duly signed completed
copies of the forms or statements required to be provided by such
Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Lender acts for its own
account that is not subject to U.S. withholding tax, and (B) two duly
signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with such
form, and any other certificate or statement of exemption required
under the Code, to establish
55
that such Lender is not acting for its own account with respect to a
portion of any such sums payable to such Lender.
(iii) The Borrower shall not be required to pay any
additional amount to any Foreign Lender under Section 3.01 (A) with
respect to any Taxes required to be deducted or withheld on the basis
of the information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 9.15(a) or
(B) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 9.15(a); provided that if such Lender shall
have satisfied the requirement of this Section 9.15(a) on the date such
Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this
Section 9.15(a) shall relieve the Borrower of its obligation to pay any
amounts pursuant to Section 3.01 in the event that, as a result of any
change in any applicable law, treaty or governmental rule, regulation
or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to
deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account
of which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at
a reduced rate.
(iv) The Administrative Agent may, without reduction,
withhold any Taxes required to be deducted and withheld from any
payment under any of the Loan Documents with respect to which the
Borrower is not required to pay additional amounts under this Section
9.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
9.16 REPLACEMENT OF LENDERS. Under any circumstances set forth
herein providing that the Borrower shall have the right to replace a Lender as a
party to this Agreement, the Borrower may, upon notice to such Lender and the
Administrative Agent, replace such Lender by causing such Lender to assign its
Commitment (with the assignment fee to be paid by the Borrower in such instance)
pursuant to Section 9.07(b) to one or more other Lenders or Eligible Assignees
procured by the Borrower; provided, however, that if the Borrower elects to
exercise such right with respect to any Lender pursuant to Section 3.06(b), they
shall be obligated to
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replace all Lenders that have made similar requests for compensation pursuant to
Section 3.01 or 3.04. The Borrower shall (x) pay in full all principal,
interest, fees and other amounts owing to such Lender through the date of
replacement (including any amounts payable pursuant to Section 3.05), and (y)
release such Lender from its obligations under the Loan Documents. Any Lender
being replaced shall execute and deliver an Assignment and Assumption with
respect to such Lender's Commitment and outstanding Loans.
9.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS
SITTING IN CHICAGO OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER,
THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER,
THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO. EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
9.18 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
NUVEEN INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Vice President and Treasurer
BANK OF AMERICA, N.A., as
Administrative Agent and a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
CITIBANK, N.A., as Syndication Agent and a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
BANK ONE, NA, as Documentation Agent and a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate Director
S-1
STATE STREET BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
S-2
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
------------------------------------------------------------------------------------
Bank of America, N.A. $ 37,500,000 30.000000000%
Citibank, N.A. $ 25,000,000 20.000000000%
Bank One, NA $ 25,000,000 20.000000000%
State Street Bank and Trust Company $ 25,000,000 20.000000000%
The Bank of New York $ 12,500,000 10.000000000%
Total $ 125,000,000 100.000000000%
Schedule 2.01
SCHEDULE 5.09
SUBSIDIARIES AND INVESTMENTS
SUBSIDIARIES
JURISDICTION OF % OWNED BY NUVEEN
SUBSIDIARY NAME INCORPORATION INVESTMENTS, INC.
1. Nuveen Advisory Corp. Delaware 100%
2. Nuveen Asia Investments, Inc. Delaware 100%
3. Nuveen Asset Management Inc. Delaware 100%
4. Nuveen Investments Advisers Inc. Delaware 100%
5. Nuveen Institutional Advisory Corp. Delaware 100%
6. Nuveen Investments Holdings, Inc. Delaware 100%
7. Nuveen Investments, LLC Delaware limited 100%
liability company
8. Nuveen Senior Loan Asset Management Inc. Delaware 100%
9. NWQ Investment Management Company, LLC Delaware limited 100%*
liability company
10. ▇▇▇▇▇▇▇▇▇▇▇ Asset Management, Inc. Delaware 100%**
11. Symphony Asset Management, LLC California limited 100%
liability company
12. Nuveen Investments Institutional Delaware limited 100%
Services Group LLC liability company
* An unaffiliated entity owned by key employees of NWQ Investment Management
Company, LLC ("NWQ"), owns a non-controlling member interest in NWQ, allowing
its owners to participate in the growth of profits of NWQ. These interests allow
their owners to participate in the profits of NWQ above specified levels
beginning January 1, 2003. Beginning in 2004 and continuing through 2008, the
Borrower has the right to acquire these member interests.
** Excludes shares of Class B common stock held by current or former employees
of ▇▇▇▇▇▇▇▇▇▇▇ Asset Management, Inc. ("▇▇▇▇▇▇▇▇▇▇▇") pursuant to the
▇▇▇▇▇▇▇▇▇▇▇ 1997 Equity
Schedule 5.09
Incentive Award Plan, which shares do not participate in the earnings of
▇▇▇▇▇▇▇▇▇▇▇. The Borrower has the right to acquire these shares beginning
October 2003.
OTHER INVESTMENTS
NAME DESCRIPTION
Institutional Capital Corporation Investment of Nuveen Investments, LLC
in convertible preferred equity
security convertible into 20% of
common equity.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Equity Partners L.P. Investment of Nuveen Investments,
Inc. in limited partnership interests
of a private investment partnership
representing approximately 14% of the
total partnership equity interests.
Schedule 5.09
SCHEDULE 5.10
ERISA
The Borrower or other Controlled Group member maintains only the
following Single Employer Plan:
Nuveen Investments Employees' Retirement Plan
Schedule 5.10
SCHEDULE 9.02
ADMINISTRATIVE AGENT'S OFFICE,
CERTAIN ADDRESSES FOR NOTICES
NUVEEN INVESTMENTS, INC.
as Borrower
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Berkshire, General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Website Address: ▇▇▇.▇▇▇▇▇▇.▇▇▇
ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
One Independence Center
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: NC1-001-15-04
Charlotte, N.C. 28255-0001
Attention: Merci ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
One Independence Center
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: NC1-001-15-02
Charlotte, N.C. 28255-0001
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Schedule 9.02