EXHIBIT 10.2
FIRST AMENDMENT TO 3-YEAR REVOLVING CREDIT AGREEMENT AND WAIVER
THIS FIRST AMENDMENT TO 3-YEAR CREDIT AGREEMENT AND WAIVER, dated as of
April 4, 2005 (this "Amendment"), amends the 3-Year Credit Agreement, dated as
of August 7, 2003 (the "Credit Agreement"), among Nuveen Investments, Inc. (the
"Borrower"), certain financial institutions (the "Lenders"), Citibank, N.A., as
Syndication Agent, Bank One, NA, as Documentation Agent, and Bank of America,
N.A., as Administrative Agent. Terms defined in the Credit Agreement are, unless
otherwise defined herein or the context otherwise requires, used herein as
defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement, which
provides for the Lenders to extend certain credit facilities to the Borrower
from time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. AMENDMENTS. The Credit Agreement is hereby amended as follows:
1.1 Change of Control. The definition of "Change of Control" in Section
1.01 of the Credit Agreement is hereby amended to state in its entirety as
follows:
"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), but
excluding The St. Xxxx Travelers Companies, Inc. at any time prior to the
repurchase referred to in Section 6.18, of 30% or more of the outstanding
shares of voting stock of the Borrower, or
(b) 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.
1.2 Debt. The definition of "Debt" in Section 1.01 of the Credit Agreement
is hereby amended to state in its entirety as follows:
"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 prepare in accordance with
GAAP. Debt shall include, without duplication of any amount included
above, all obligations of the Borrower and its Subsidiaries in respect of
those forward contracts providing for the purchase from The St. Xxxx
Travelers Companies, Inc. of up to $400,000,000 of common stock of the
Borrower, whether or not reflected on a balance sheet.
1.3 Indebtedness. The definition of "Indebtedness" in Section 1.01 of the
Credit Agreement is hereby amended to sate in its entirety as follows:
"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 property); (f) all obligations with respect to capital leases; (g)
all Rate Hedging Obligations; (h) all obligations with respect to those
forward contracts providing for the purchase from The St. Xxxx Travelers
Companies, Inc. of up to $400,000,000 of common stock of the Borrower; (i)
all indebtedness referred to in clauses (a) through (h) 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 (j) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses
(a) through (h) above.
1.4 Note Purchase Agreement. The following definition of "Note Purchase
Agreement" is hereby added to Section 1.01 of the Credit Agreement in proper
alphabetical order:
"Note Purchase Agreement" means the Note Purchase Agreement of the
Borrower dated September 19, 2003 between the Borrower and the purchasers
of the Borrower's 4.22% unsecured senior notes due September 19, 2008, as
amended, restated, supplemented or otherwise modified form time to time.
1.5 Private Placement. The following definition shall be added to Section
1.01 of the Credit Agreement in proper alphabetical order:
"Private Placement" has the meaning specified in Section 6.11(j).
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1.6 Material Agreements. Section 5.16 of the Credit Agreement is hereby
amended to state in its entirety as follows:
"5.16 MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary
is a party to any agreement or instrument or subject to any charter or
other company restriction which could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary is in
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement to which
it is a party, which default could reasonably be expected to have a
Material Adverse Effect."
1.7 indebtedness. Section 6.11 of the Credit Agreement is hereby amended
to state in its entirety as follows:
"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) INTENTIONALLY OMITTED
(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) INTENTIONALLY OMITTED
(j) unsecured Indebtedness (the "Private Placement") of the
Borrower 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 Note Purchase Agreement;
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(k) other unsecured Indebtedness of the Borrower not otherwise
permitted by this Section 6.11 in an aggregate principal amount not
exceeding $450,000,000 (or, if greater, $750,000,000 less the
outstanding principal amount of the Private Placement) on terms and
conditions that provide no greater priority for such Indebtedness
than the Obligations; and
(l) 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."
1.8 affiliates. Section 6.18 of the Credit Agreement is hereby amended to
state in its entirety as follows:
"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 than the Borrower or such
Subsidiary would obtain in a comparable arms-length transaction, (b)
transactions among the Borrower and Wholly-Owned Subsidiaries of the
Borrower and (c) repurchases by the Borrower of up to $600,000,000 of its
common shares from The St. Xxxx Travelers Companies, Inc."
1.9 Inconsistent Agreements. Section 6.20 of the Credit Agreement is
hereby amended to state in its entirety as follows:
"6.20 INCONSISTENT AGREEMENTS. The Borrower will not, and will not
permit any Subsidiary to, be a party to any indenture, agreement,
instrument or other arrangement that (a) directly or indirectly prohibits
or restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, (i) the incurrence of the Obligations,
(ii) the granting of Liens to secure the Obligations, (iii) the amending
of the Loan Documents or (iv) the ability of any Subsidiary to (x) pay
dividends or make other distributions on its capital stock or other equity
interests, (y) make loans or advances to the Borrower or (z) 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; provided that the foregoing shall not apply to any prohibition
or restraint of the type described in clause (a)(ii) or (a)(iv)(y)
contained in (A) this Agreement, (B) the Note Purchase Agreement or (C)
any other agreement pursuant to which the Borrower incurs Indebtedness of
the type described in Section 6.11(k) so long as no such prohibition or
restraint in such other agreement is more restrictive than the
corresponding prohibition or restraint contained in this Agreement or in
the documents referred to in the foregoing clause (B)."
1.10 Minimum Net Worth. Section 6.21(a) of the Credit Agreement is hereby
amended to state in its entirety as follows:
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"(a) Minimum Net Worth. After the date hereof and prior to
April 1, 2005, maintain a minimum Net Worth of at least $360,000,000
and at all times thereafter maintain a minimum Net Worth of at least
zero plus 30% of Net Income, if positive, for each fiscal quarter
ending on or after June 30, 2005."
SECTION 2. WAIVER. The Lenders and the Administrative Agent hereby waive
any right they may have to take action under Section 7.01(e) of the Credit
Agreement arising solely as a result of any default which might arise under the
Note Purchase Agreement (x) arising from the prepayment of Indebtedness under
the Note Purchase Agreement without giving the required notice under the Note
Purchase Agreement or (y) resulting from or relating to repurchases by the
Borrower of its capital stock from The St. Xxxx Travelers Companies, Inc., but
only so long as (a) the holders of such Indebtedness do not exercise any legal
remedies as a result of such default and (b) all obligations of the Borrower
with respect to the Note Purchase Agreement(including obligations resulting from
such default) have been paid in full within thirty days after the date of such
default.
SECTION 3. CONDITIONS PRECEDENT. This Amendment shall become effective
when each of the conditions precedent set forth in this Section 3 shall have
been satisfied, and notice thereof shall have been given by the Administrative
Agent to the Borrower and the Lenders.
3.1 Receipt of Documents. The Administrative Agent shall have received all
of the following documents duly executed, dated the date hereof or such other
date as shall be acceptable to the Administrative Agent, and in form and
substance reasonably satisfactory to the Administrative Agent:
(a) Amendment. This Amendment, duly executed by the Borrower, the
Administrative Agent and the Majority Lenders.
(b) Consents. Copies, certified by the secretary or an assistant
secretary of the Borrower, of all documents evidencing any necessary
corporate action, consents and governmental approvals (if any) with
respect to this Amendment and the other documents described herein.
(c) Secretary's Certificate. A certificate of the secretary or an
assistant secretary of the Borrower, as to (i) resolutions of the Board of
Directors of the Borrower then in full force and effect authorizing the
execution, delivery and performance of this Amendment and each other
document described herein, and (ii) the incumbency and signatures of those
officers of the Borrower authorized to act with respect to this Amendment
and each other document described herein.
3.2 Compliance with Warranties, No Default, etc. Both before and after
giving effect to the effectiveness of this Amendment, the following statements
by the Borrower shall be true and correct (and the Borrower, by its execution of
this Amendment, hereby represents and warrants to the Administrative Agent and
each Lender that such statements are true and correct as at such times):
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(a) the representations and warranties set forth in Article V of the
Credit Agreement shall be true and correct with the same effect as if then
made (unless stated to relate solely to an earlier date, in which case
such representations and warranties shall be true and correct as of such
earlier date); and
(b) no Default shall have then occurred and be continuing.
3.3 Amendment Fee. The Borrower shall have paid to the Administrative
Agent for the account of each Lender executing and delivering a counterpart of
this Amendment prior to 12:00 p.m. (New York time) on April 4, 2005, an
amendment fee equal to 0.05% of such Lender's Commitment under the Credit
Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES. To induce the Lenders and the
Administrative Agent to enter into this Amendment, the Borrower hereby
represents and warrants to the Administrative Agent and each Lender as follows:
4.1 Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by the Borrower of this Amendment are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate action,
and do not
(a) contravene the Borrower's charter or bylaws;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Borrower;
or
(c) result in, or require the creation or imposition of, any Lien on
any of the Borrower's properties.
4.2 Government Approval, Regulation, etc. No authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body or other Person is required for the due execution, delivery or
performance by the Borrower of this Amendment.
4.3 Validity, etc. This Amendment constitutes the legal, valid and binding
obligation of the Borrower enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity limiting availability of equitable remedies.
SECTION 5. MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be an
amendment to the Credit Agreement, and the Credit Agreement, as amended hereby,
shall remain in full force and effect and is hereby ratified, approved and
confirmed in each and every respect. After the effectiveness of this Amendment
in accordance with its terms, all references to the Credit Agreement in the Loan
Documents or in any other document, instrument, agreement or writing shall be
deemed to refer to the Credit Agreement as amended hereby.
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5.2 Payment of Costs and Expenses. The Borrower agrees to pay on demand
all expenses of the Administrative Agent (including the reasonable fees and
out-of-pocket expenses of counsel to the Administrative Agent) in connection
with the negotiation, preparation, execution and delivery of this Amendment.
5.3 Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
5.4 Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
5.5 Execution in Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. Delivery of a counterpart signature page hereto by facsimile shall be
effective as delivery of an original signed counterpart.
5.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
5.7 Successors and Assigns. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
NUVEEN INVESTMENTS, INC.
By /s/ Xxxxx X. X'Xxxxxx
Title: VP and Treasurer
S-1
BANK OF AMERICA, N.A., as a Lender
By /s/ Xxxxxx Xxxxx
Title: Vice President
S-2
CITIBANK, N.A., as a Lender
By /s/ Xxxxxxx Xxxxxxxx
Title: Director
S-3
JPMORGAN CHASE BANK, N.A. (successor
to BANK ONE), as a Lender
By: /s/ Xxxxxx Xxxx
Title: Vice President
S-4
STATE STREET BANK AND TRUST COMPANY,
as a Lender
By /s/ Xxxxxxx Xxxxxxx
Title: Vice President
S-5
THE BANK OF NEW YORK, as a Lender
By /s/ Xxxx Xxxxxxx
Title: Vice President
S-6
