Exhibit 10.4


 


MERRILL LYNCH MANDATORILY EXCHANGEABLE
INDEMNITY

AGREEMENT


 


 


among


 


 


MERRILL LYNCH & CO., INC.,


as Issuer of 6.75% Mandatorily Exchangeable
Securities due October 15, 2007,


 


NUVEEN INVESTMENTS, INC.,


as Issuer of shares of Class A common
stock, par value $0.01 per share,


 


THE ST. PAUL TRAVELERS COMPANIES, INC.,


as Selling Stockholder,


 


MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED 


 


and 


 


MORGAN STANLEY & CO. INCORPORATED,


as Underwriters,


 


and 


 


MERRILL LYNCH INTERNATIONAL,


as Forward Counterparty


 


 


dated as of April 6,
2005


 





















 


MERRILL LYNCH MANDATORILY EXCHANGEABLE
INDEMNITY AGREEMENT


 


Merrill Lynch Mandatorily Exchangeable Indemnity Agreement (this “Agreement”), dated as of April 6,
2005, among Merrill Lynch & Co., Inc., a Delaware corporation
(the “Mandatory  Issuer”), Nuveen Investments, Inc., a
Delaware corporation (“Nuveen”),
The St. Paul Travelers Companies, Inc., a Minnesota corporation (“St. Paul Travelers”), Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co.
Incorporated (each, an “Underwriter”
and together, the “Underwriters”),
and Merrill Lynch International (the “Forward
Counterparty”).


 


WHEREAS, the Mandatory Issuer has entered into an underwriting
agreement (the “ML Securities Underwriting
Agreement”), pursuant to which the Mandatory Issuer has agreed to
issue and sell to the Underwriters $275,060,000 aggregate principal amount of
6.75% Mandatorily Exchangeable Securities due October 15, 2007 (the “Securities”), mandatorily exchangeable for
shares of the Class A common stock, par value $0.01 per share, of Nuveen
(the “Nuveen Class A Shares”)
or the cash value thereof;


 


WHEREAS, the Securities are to be issued pursuant to the provisions of
an indenture dated as of April 1, 1983, as amended and restated, between
the Mandatory Issuer and JPMorgan Chase Bank, N.A.;


 


WHEREAS, the Mandatory Issuer has filed with the Securities and
Exchange Commission (the “Commission”)
a registration statement, including a prospectus, relating to the Securities,
dated March 25, 2005 (the “Mandatory
Issuer Basic Prospectus”), and has
filed with, or transmitted for filing to, or shall promptly hereafter file with
or transmit for filing to, the Commission a prospectus supplement (the “Securities Prospectus Supplement”)
specifically relating to the Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the “Securities
Act”);


 


WHEREAS, St. Paul Travelers has entered on the date hereof into a
prepaid forward sale transaction with the Forward Counterparty, pursuant to
which St. Paul Travelers will deliver to the Forward Counterparty 5,824,800
Nuveen Class A Shares (subject to St. Paul Travelers’ right to cash settle
such transaction) (the “ML Forward Agreement”);


 


WHEREAS, Nuveen has filed with the Commission a registration statement,
including a prospectus, relating to the Nuveen Class A Shares, dated March 18,
2005 (the “Nuveen Basic Prospectus”),
and has filed with, or transmitted for filing to, or shall promptly hereafter
file with or transmit for filing to, the Commission a final prospectus
supplement (the “Nuveen Prospectus Supplement”)
pursuant to Rule 424 under the Securities Act specifically relating 


 


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to
the Nuveen Class A Shares to be delivered pursuant to the ML Forward
Agreement;


 


WHEREAS, the Mandatory Issuer and the Underwriters are willing to carry
out the transactions contemplated by the ML Securities Underwriting Agreement,
and the Forward Counterparty is willing to enter into the ML Forward Agreement,
on the condition that Nuveen and St. Paul Travelers enter into, and perform
their respective obligations under, this Agreement;


 


THEREFORE, the parties hereto agree as follows:


 


1.                                       Definitions.  (a)  The following terms, as used
herein, have the following meanings:


 


“1940 Act” has the meaning
set forth in Section 2(aa).


 


“Advisers Act” has the
meaning set forth in Section 2(bb).


 


“Agreement” has the
meaning set forth in the preamble of this Agreement.


 


“Basic  Prospectus” means the Nuveen Basic Prospectus
or the Mandatory Issuer Basic Prospectus, as the case may be.


 


“Bridge Facility” means
the bridge loan facility, dated April 1, 2005 between Nuveen and Citicorp
North America, Inc., as administrative agent, and the other lenders
thereto.


 


“Broker-Dealer Subsidiary”
has the meaning set forth in Section 2(cc).


 


“Closing Date” means the
date on which the Mandatory Issuer shall deliver the Securities and the
Underwriters shall pay the purchase price for the Securities, as set forth in
the ML Securities Underwriting Agreement.


 


“Commission” has the
meaning set forth in the recitals of this Agreement.


 


“Common Stock Underwriting Agreement”
means the Underwriting Agreement, dated the date hereof, among Nuveen, the
Selling Stockholders, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Morgan Stanley & Co. Incorporated, acting severally
on behalf of themselves and the several underwriters named in Schedule I
thereto.


 


“Environmental Laws” has
the meaning set forth in Section 2(z).


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


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“Forward Counterparty” has
the meaning set forth in the preamble of this Agreement.


 


“indemnified party” has
the meaning set forth in Section 9(d).


 


“indemnifying party” has
the meaning set forth in Section 9(d).


 


“Investment Advisory Subsidiaries”
has the meaning set forth in Section 2(bb).


 


“Mandatory  Issuer” has the meaning set forth in the
preamble of this Agreement.


 


“Mandatory  Issuer Basic Prospectus” has the meaning
set forth in the recitals of this Agreement.


 


“Mandatory  Issuer Registration Statement” means the
registration statement of the Mandatory Issuer that contains the Securities
Prospectus, including the exhibits thereto, as amended to the date of this
Agreement.


 


“Material Adverse Effect”
has the meaning set forth in Section 2(d).


 


“ML Forward Agreement” has
the meaning set forth in the recitals of this Agreement.


 


“ML Securities Underwriting Agreement”
has the meaning set forth in the recitals of this Agreement.


 


“MS Forward Agreement”
means the prepaid forward sale transaction entered into between St. Paul
Travelers and Morgan Stanley International Limited, pursuant to which St. Paul
Travelers will deliver to Morgan Stanley International Limited 6,067,500 Nuveen
Class A Shares (subject to St. Paul Travelers’ right to cash settle such
transaction).


 


“Nuveen” has the meaning
set forth in the preamble of this Agreement.


 


“Nuveen Basic Prospectus”
has the meaning set forth in the recitals to this Agreement.


 


“Nuveen Class A
Shares” has the meaning set forth in the recitals of this
Agreement.


 


“Nuveen Class B Shares”
means shares of Nuveen Class B common stock, par value $0.01 per share.


 


“Nuveen  Common Stock” means the Nuveen Class A
Shares and Nuveen Class B Shares.


 


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“Nuveen preliminary prospectus”
means a preliminary Nuveen Prospectus Supplement specifically relating to the
Nuveen Class A Shares to be delivered pursuant to the ML Forward
Agreement, together with the Nuveen Basic Prospectus.


 


“Nuveen Prospectus” means
the Nuveen Basic Prospectus together with the Nuveen Prospectus Supplement.


 


“Nuveen  Prospectus Supplement” has the meaning set
forth in the recitals of this Agreement.


 


“Nuveen Registration Statement”
means the registration statement on Form S-3 of Nuveen that contains
the Nuveen Prospectus, including the exhibits thereto, as amended to the date
of this Agreement.


 


“Nuveen Repurchase Agreement”
means the agreement, dated as of March 29, 2005, between Nuveen and St.
Paul Travelers pursuant to which St. Paul Travelers will sell to Nuveen $200
million of shares of Nuveen Common Stock on the Closing Date and $400 million
of shares of Nuveen Common Stock on a forward basis no later than December 23,
2005.


 


“preliminary prospectus”
means any Nuveen preliminary prospectus or any Securities preliminary
prospectus.


 


“Prospectus” means the
Nuveen Prospectus or the Securities Prospectus.


 


“Public Offering Price of the
Securities” means the price to the public set forth in the table on
the cover of the Securities Prospectus Supplement.


 


“Securities” has the
meaning set forth in the recitals of this Agreement.


 


“Securities Act” has the
meaning set forth in the recitals of this Agreement.


 


“Securities preliminary prospectus”
means a preliminary Prospectus Supplement specifically relating to the
Securities, together with the Mandatory Issuer Basic Prospectus.


 


“Securities Prospectus”
means the Mandatory Issuer Basic Prospectus together with the Securities
Prospectus Supplement.


 


“Securities Prospectus Supplement”
has the meaning set forth in the recitals of this Agreement.


 


“Selling Stockholders”
means St. Paul Travelers and St. Paul Fire and Marine Insurance Company, a
Minnesota corporation.


 


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“Selling Stockholder Forward
Agreements” means the ML Forward Agreement and the MS Forward
Agreement.


 


“Selling Stockholder Information”
means, collectively, all statements or omissions based upon information
relating to the Selling Stockholders furnished to Nuveen in writing by the
Selling Stockholders expressly for use in the Nuveen Registration Statement or
the Nuveen Prospectus or any amendments or supplements thereto.


 


“Separation Agreement”
means the separation agreement dated as of April 1, 2005 between Nuveen
and St. Paul Travelers.


 


“Significant Subsidiaries”
has the meaning set forth in Section 2(d).


 


“St. Paul Travelers” has
the meaning set forth in the preamble of this Agreement.


 


“UCC” has the meaning set
forth in Section 3(f).


 


“Underwriter” or “Underwriters” has the meaning set forth in
the preamble.


 


(b)                                 Incorporation
by Reference.  As used herein:


 


(i)                                     The
terms “Basic Prospectus,” “Prospectus” and “preliminary prospectus” shall include in each case the documents
incorporated by reference therein.


 


(ii)                                  The
terms “supplement” and “amendment” or “amend” as used in this Agreement shall include, without
limitation, all documents deemed to be incorporated by reference in the
relevant Prospectus that are filed subsequent to the date of the Basic
Prospectus by the respective registrant with the Commission pursuant to the
Exchange Act.


 


(c)                                  All references in
this Agreement to sections and subsections are to sections and subsections in
this Agreement unless otherwise specified.


 


2.                                       Representations
and Warranties of Nuveen.  Nuveen
represents and warrants to and agrees with the Mandatory Issuer and each of the
Underwriters that:


 


(a)                                  The
Nuveen Registration Statement has been declared effective by the Commission; no
stop order suspending the effectiveness of the Nuveen Registration Statement
has been issued, and no notice has been received from the 


 


6





















 


Commission by
Nuveen that any proceedings for such purpose are pending or, to the knowledge
of Nuveen, threatened by the Commission.


 


(b)                                 (i) Each
document filed or to be filed pursuant to the Exchange Act and incorporated by
reference in the Nuveen Prospectus complied or will comply when so filed in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) the Nuveen Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the Nuveen
Registration Statement and the Nuveen Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Nuveen Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions based upon (x) information
relating to any Underwriter (or any “Underwriter” as such term is defined in
the Common Stock Underwriting Agreement) furnished to Nuveen in writing by such
Underwriter (or any “Underwriter” as such term is defined in the Common Stock
Underwriting Agreement) expressly for use therein, or (y) the Selling
Stockholder Information.


 


(c)                                  Nuveen
has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Nuveen Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the financial condition, earnings or results
of operations of Nuveen and its subsidiaries, taken as a whole (a “Material Adverse Effect”).


 


(d)                                 Each
Investment Advisory Subsidiary (as defined below) and each significant
subsidiary (as that term is defined under Regulation S-X promulgated under the
Exchange Act) of Nuveen (together with the Investment Advisory Subsidiaries,
each, a “Significant Subsidiary”,
and collectively, the “Significant
Subsidiaries”) has been duly incorporated or formed, is validly
existing in good standing under the laws of the jurisdiction of its
incorporation or formation, has the requisite power and authority to own its
property and to conduct its business as described in the Nuveen Prospectus and
is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a 


 


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Material
Adverse Effect; all of the issued shares of capital stock or interests of each
Significant Subsidiary of Nuveen have been duly and validly authorized and
issued, are fully paid and non-assessable, or the substantive equivalent
thereto, and (except for directors’ qualifying shares) are owned directly or
indirectly by Nuveen, free and clear of all liens, encumbrances, equities or
claims, except in each case as would not cause a Material Adverse Effect.


 


(e)                                  This
Agreement has been duly authorized, executed and delivered by Nuveen.


 


(f)                                    The
Nuveen Repurchase Agreement has been duly authorized, executed and delivered by
Nuveen and is a valid and binding agreement of Nuveen, enforceable against
Nuveen in accordance with its terms except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors’ rights
generally, (B) the availability of equitable remedies may be limited by
equitable principles of general applicability and (C) may be limited by an
implied covenant of good faith and fair dealing;


 


(g)                                 The
Bridge Facility has been duly authorized, executed and delivered by Nuveen and
is a valid and binding agreement of Nuveen, enforceable against Nuveen in
accordance with its terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors’ rights generally, (B) the
availability of equitable remedies may be limited by equitable principles of
general applicability and (C) may be limited by an implied covenant of
good faith and fair dealing;


 


(h)                                 The
Separation Agreement has been duly authorized, executed and delivered by Nuveen
and is a valid and binding agreement of Nuveen, enforceable against Nuveen in
accordance with its terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors’ rights generally, (B) the
availability of equitable remedies may be limited by equitable principles of
general applicability and (C) may be limited by an implied covenant of
good faith and fair dealing;


 


(i)                                     The
authorized capital stock of Nuveen conforms as to legal matters to the
description thereof contained in the Nuveen Prospectus.


 


(j)                                     The
outstanding Nuveen Class B Shares held by the Selling Stockholders to be
converted into Nuveen Class A Shares and sold by the Selling Stockholders
under the Common Stock Underwriting Agreement and the outstanding Nuveen Class B
Shares held by St. Paul Travelers to be converted into Nuveen Class A
Shares and sold by St. Paul Travelers under the Selling Stockholder Forward
Agreements and the outstanding Nuveen Class B Shares to 


 


8





















 


be sold by St.
Paul Travelers under the Nuveen Repurchase Agreement have been duly authorized
and are validly issued, fully paid and non-assessable.


 


(k)                                  Except
as disclosed in the Nuveen Prospectus, the execution and delivery by Nuveen of,
and the performance by Nuveen of its obligations under, this Agreement, the
Common Stock Underwriting Agreement, the Nuveen Repurchase Agreement, the
Bridge Facility and the Separation Agreement will not contravene (i) any
provision of applicable law, (ii) the certificate of incorporation or
by-laws of Nuveen, (iii) any agreement or other instrument binding upon
Nuveen or any of its subsidiaries that is material to Nuveen and its
subsidiaries, taken as a whole, or (iv) any judgment, order or decree of
any governmental body, agency or court having jurisdiction over Nuveen or any
subsidiary of Nuveen, except in the case of (i), (iii), and (iv) as would
not have a Material Adverse Effect, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required
for the performance by Nuveen of its obligations under this Agreement, the
Common Stock Underwriting Agreement, the Nuveen Repurchase Agreement, the Bridge
Facility and the Separation Agreement, except those which have been obtained
and made and except such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the Nuveen Class A
Shares and except for those which the failure to obtain, individually or in the
aggregate, would not have a Material Adverse Effect.


 


(l)                                     There
has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the financial condition or in the
earnings, business or operations of Nuveen and its subsidiaries, taken as a
whole, from that set forth in the Nuveen Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement).


 


(m)                               There
are no legal or governmental proceedings pending or, to the knowledge of
Nuveen, threatened to which Nuveen or any of its subsidiaries is a party or to
which any of the properties of Nuveen or any of its subsidiaries is subject
that are required to be described in the Nuveen Registration Statement or the
Nuveen Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the Nuveen
Registration Statement or the Nuveen Prospectus or to be filed as exhibits to
the Nuveen Registration Statement that are not described or filed as required.


 


(n)                                 Each
preliminary prospectus filed as part of the Nuveen Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied as to form when so filed in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder.


 


(o)                                 Except
as disclosed in the Nuveen Prospectus, there are no contracts, agreements or
understandings between Nuveen and any person granting 


 


9





















 


such person
the right to require Nuveen to file a registration statement under the
Securities Act with respect to any securities of Nuveen or to require Nuveen to
include such securities with the Nuveen Class A Shares registered pursuant
to the Nuveen Registration Statement.


 


(p)                                 Neither
Nuveen nor any of its subsidiaries is in violation of its certificate of
incorporation, by-laws or other constituent documents; neither Nuveen nor any
of its subsidiaries is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any agreement or
other instrument binding upon Nuveen or any of its subsidiaries, except to the
extent any such violation or default would not, individually or in the
aggregate, have a Material Adverse Effect.


 


(q)                                 Subsequent
to the respective dates as of which information is given in the Nuveen
Registration Statement and the Nuveen Prospectus, (i) Nuveen and its
subsidiaries have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction; (ii) Nuveen has not
purchased any of its outstanding capital stock (other than open market
repurchases pursuant to its open market repurchase program), nor declared, paid
or otherwise made any dividend or distribution of any kind on its capital stock
other than ordinary and customary dividends; and (iii) there has not been
any material change in the capital stock or any increase in short-term debt or
long-term debt of Nuveen and its subsidiaries, except in each case as described
in the Nuveen Prospectus or as contemplated by the offerings and transactions
that are described therein.


 


(r)                                    Nuveen
and its Significant Subsidiaries have good and marketable title in fee simple
to all real property and good and marketable title to all personal property
owned by them which is material to the business of Nuveen and its subsidiaries,
in each case free and clear of all liens, encumbrances and defects except such
as are described in the Nuveen Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and proposed
to be made of such property by Nuveen and its subsidiaries; and any real
property and buildings held under lease by Nuveen and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be made
of such property and buildings by Nuveen and its subsidiaries, in each case
except as described in the Nuveen Prospectus.


 


(s)                                  Nuveen
and its subsidiaries, either directly or through a subsidiary or subsidiaries,
own or possess, or can acquire on reasonable terms, all material patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names
necessary for the conduct of the business now operated by them, except where
the failure to so own, possess or be able to acquire on reasonable terms would
not, 


 


10





















 


individually
or in the aggregate, have a Material Adverse Effect, and neither Nuveen nor any
of its subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.


 


(t)                                    No
labor dispute with the employees of Nuveen or any of its subsidiaries exists
or, to the knowledge of Nuveen, is imminent, that would have a Material Adverse
Effect; and Nuveen is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers, manufacturers
or contractors that would have a Material Adverse Effect.


 


(u)                                 Nuveen
and its subsidiaries possess all material certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and neither
Nuveen nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a Material Adverse
Effect, except as described in the Nuveen Prospectus.


 


(v)                                 Nuveen
and each of its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.


 


(w)                               The
Nuveen Class A Shares to be sold pursuant to the ML Forward Agreement have
been authorized for listing on the New York Stock Exchange, subject only to
official notice of issuance and have been registered under the Exchange Act.


 


(x)                                   Except
as described in the Nuveen Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), Nuveen has not
sold, issued or distributed any shares of Nuveen Common Stock during the
six-month period preceding the date hereof, including any sales pursuant to Rule 144A
under, or Regulation D or S of, the Securities Act, other than shares
issued pursuant to employee benefit plans, qualified stock option plans or
other employee compensation plans or pursuant to outstanding options, rights or
warrants.


 


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(y)                                 KPMG
LLP, whose report is included in the Nuveen Prospectus, has notified Nuveen
that it is an independent registered public accounting firm with respect to
Nuveen and its combined subsidiaries within the meaning of the Securities Act
and the rules and regulations adopted by the Commission thereunder.  The financial statements of Nuveen and its
combined subsidiaries (including the related notes) included in the Nuveen
Registration Statement and the Nuveen Prospectus present fairly in all material
respects the financial condition, results of operations and cash flows of the
entities purported to be shown thereby at the dates and for the periods
indicated and have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis throughout the
periods indicated and conform in all material respects with the rules and
regulations adopted by the Commission under the Securities Act.


 


(z)                                   Nuveen
and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, individually or in
the aggregate, have a Material Adverse Effect.


 


(aa)                            Nuveen
is not, and after giving effect to the offering and sale of the Nuveen Class A
Shares pursuant to the ML Forward Agreement and the application of the proceeds
thereof as described in the Nuveen Prospectus will not be, required to register
as an “investment company” as such term is defined in the Investment Company
Act of 1940, as amended (the “1940 Act”).


 


(bb)                          Except
in each case as would not reasonably be expected to have a Material Adverse
Effect:  Each of Rittenhouse Asset
Management Inc., NWQ Investment Management Company LLC, Symphony Asset
Management Inc., Nuveen Asset Management, Inc., Nuveen Investments
Advisers and Nuveen Investments Institutional Services Group LLC (together, the
“Investment Advisory Subsidiaries”)
is duly registered as an investment adviser under the Investment Advisers Act
of 1940, as amended (the “Advisers Act”)
and none of the Investment Advisory Subsidiaries is prohibited by any provision
of the Advisers Act or the 1940 Act, or the respective rules and
regulations thereunder, from acting as an investment adviser.  The Investment Advisory Subsidiaries are the
only direct or indirect subsidiaries of Nuveen required to be registered as
investment advisers under the Advisers Act. 
Each of the Investment Advisory Subsidiaries is duly registered,
licensed or qualified as an investment adviser in each jurisdiction where the
conduct of its business requires such registration and


 


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is in
compliance with all federal, state and foreign laws requiring any such
registration, licensing or qualification or is subject to no material liability
or disability by reason of the failure to be so registered, licensed or qualified
in any such jurisdiction or to be in such compliance.  None of Nuveen or its other direct or
indirect subsidiaries is required to be registered, licensed or qualified as an
investment adviser under the laws requiring any such registration, licensing or
qualification in any jurisdiction in which it or such other subsidiaries
conduct business or is subject to material liability or disability by reason of
the failure to be so registered, licensed or qualified.


 


(cc)                            Nuveen
Investments, LLC (the “Broker-Dealer
Subsidiary”) is duly registered, licensed or qualified as a
broker-dealer under the Exchange Act, and under the securities laws of each
jurisdiction where the conduct of its business requires such registration and
is in compliance with all federal, state and foreign laws requiring such
registration, licensing or qualification or is subject to no material liability
or disability by reason of the failure to be so registered, licensed or
qualified in any such jurisdiction or to be in such compliance.  The Broker-Dealer Subsidiary is a member in
good standing of National Association of Securities Dealers, Inc. and each
other self regulatory organization where the conduct of its business requires
such membership.  Neither Nuveen nor any
of Nuveen’s other direct or indirect subsidiaries is required to be registered,
licensed or qualified as a broker-dealer under the laws requiring any such
registration, licensing or qualification in any jurisdiction in which it or
such other subsidiaries conduct business or is subject to any material
liability or disability by reason of the failure to be so registered, licensed
or qualified except where the failure to be so registered, licensed or
qualified would not have a Material Adverse Effect.


 


(dd)                          Each
of the Investment Advisory Subsidiaries and the Broker-Dealer Subsidiary is,
has been and will upon consummation of the transactions contemplated herein be,
in compliance with, and each such entity has received no notice of any kind of
any violation of, (A) all laws, regulations, ordinances and rules (including
those of any non-governmental self-regulatory agencies) applicable to it or its
operations relating to investment advisory or broker-dealer activities, as the
case may be, and (B) all other laws, regulations, ordinances and rules applicable
to it and its operations, except, in either case, where any failure to comply
with any such law, regulation, ordinance or rule would not have,
individually or in the aggregate, a Material Adverse Effect.


 


(ee)                            Each
investment advisory agreement between Nuveen and any Investment Advisory
Subsidiary on the one hand and any advisory client on the other hand is a legal
and valid obligation of Nuveen and, to the knowledge of Nuveen, the other
parties thereto, and neither Nuveen nor any Investment Advisory Subsidiary is,
to the knowledge of Nuveen, in breach or violation of or in default under any
such agreement which breach, violation or default would individually or in the
aggregate have a Material Adverse Effect.


 


13





















 


3.                                       Representations
and Warranties of St. Paul Travelers. 
St. Paul Travelers represents and warrants to and agrees with the
Mandatory Issuer and each of the Underwriters that:


 


(a)                                  This
Agreement has been duly authorized, executed and delivered by or on behalf of
St. Paul Travelers.


 


(b)                                 The
ML Forward Agreement has been duly authorized, executed and delivered by St.
Paul Travelers and is a valid and binding agreement of St. Paul Travelers,
enforceable against St. Paul Travelers in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting creditors’
rights generally, (B) the availability of equitable remedies may be
limited by equitable principles of general applicability and (C) may be
limited by an implied covenant of good faith and fair dealing;


 


(c)                                  The
Nuveen Repurchase Agreement has been duly authorized, executed and delivered by
St. Paul Travelers and is a valid and binding agreement of St. Paul Travelers,
enforceable against St. Paul Travelers in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting creditors’
rights generally, (B) the availability of equitable remedies may be
limited by equitable principles of general applicability and (C) may be
limited by an implied covenant of good faith and fair dealing;


 


(d)                                 The
Separation Agreement has been duly authorized, executed and delivered by St.
Paul Travelers and is a valid and binding agreement of St. Paul Travelers,
enforceable against St. Paul Travelers in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting creditors’
rights generally, (B) the availability of equitable remedies may be
limited by equitable principles of general applicability and (C) may be
limited by an implied covenant of good faith and fair dealing;


 


(e)                                  The
execution and delivery by St. Paul Travelers of, and the performance by St.
Paul Travelers of its obligations under, this Agreement, the ML Forward
Agreement, the Nuveen Repurchase Agreement and the Separation Agreement will
not contravene (i) any provision of applicable law, (ii) the
certificate of incorporation or by-laws of St. Paul Travelers, (iii) any
agreement or other instrument binding upon St. Paul Travelers that is material
to St. Paul Travelers and its subsidiaries taken as a whole, or (iv) any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over St. Paul Travelers, except in the case of (i), (iii) and
(iv) as would not have a material adverse effect on St. Paul Travelers and
its subsidiaries taken as a whole, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required
for the performance by St. Paul 


14





















 


Travelers of
its obligations under this Agreement, the ML Forward Agreement, the Nuveen
Repurchase Agreement and the Separation Agreement, except those which have been
obtained and made, and as may be required by rules of the National
Association of Securities Dealers, Inc., or by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Nuveen Class A
Shares, and except for those the failure of which to obtain would not have a
material adverse effect on St. Paul Travelers and its subsidiaries taken as a
whole.


 


(f)                                    St.
Paul Travelers has (with respect to the Nuveen Class B Shares owned by St.
Paul Travelers prior to the conversion of such Nuveen Class B Shares to
Nuveen Class A Shares), and on the Closing Date and on each date of
settlement under the ML Forward Agreement will have (with respect to the Nuveen
Common Stock) valid title to, or a valid “security entitlement” within the
meaning of Section 8-501 of the New York Uniform Commercial Code
(the “UCC”) in respect of, the
Nuveen Common Stock to be sold by St. Paul Travelers pursuant to such ML
Forward Agreement on such settlement date, free and clear of all security
interests, claims, liens, equities or other encumbrances (other than any such
encumbrances arising under the ML Forward Agreement) and the legal right and
power, and all authorization and approval required by law, to enter into such
ML Forward Agreement and to sell, transfer and deliver the Nuveen Common Stock to
be sold by St. Paul Travelers pursuant to such ML Forward Agreement or a
security entitlement in respect of such Nuveen Common Stock.


 


(g)                                 Upon
payment for the Nuveen Class A Shares to be sold by St. Paul Travelers
pursuant to the ML Forward Agreement, delivery of such Nuveen Class A
Shares to the Forward Counterparty, registration of such Nuveen Class A
Shares in the name of the Forward Counterparty (assuming that the Forward
Counterparty does not have notice of any adverse claim (within the meaning of Section 8-105
of the UCC) to such Nuveen Class A Shares), (A) the Forward
Counterparty shall be a “protected purchaser” of such Nuveen Class A
Shares within the meaning of Section 8-303 of the UCC and (B) no
action based on any “adverse claim”, within the meaning of Section 8-102
of the UCC, to such Nuveen Class A Shares may be validly asserted against
the Forward Counterparty; for purposes of this representation, St. Paul
Travelers may assume that when such payment, delivery and crediting occur, such
Nuveen Class A Shares will have been registered in the name of the Forward
Counterparty on Nuveen’s share registry in accordance with its certificate of
incorporation, bylaws and applicable law.


 


(h)                                 St.
Paul Travelers is not prompted by any information concerning Nuveen or its
subsidiaries which is not set forth in the Nuveen Prospectus or otherwise has
been publicly disclosed by St. Paul Travelers to sell Nuveen Class A
Shares pursuant to the Selling Stockholder Forward Agreements.


 


15





















 


(i)                                     (i) 
The Nuveen Registration Statement, when it became effective, did not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and (ii) the
Nuveen Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, provided that the representations and
warranties set forth in this paragraph 3(i) are limited to the Selling
Stockholder Information.


 


4.                                       “Lock-Up”
Agreement of Nuveen and St. Paul Travelers. 
Each of Nuveen and St. Paul Travelers hereby agrees that, without the
prior written consent of the Underwriters, it will not, during the period
ending 90 days after the date of the Nuveen Prospectus, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares
of Nuveen Common Stock or any securities convertible into or exercisable or
exchangeable for Nuveen Common Stock; or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Nuveen Common Stock, whether any such
transaction described in clause (1) or (2) above is to be
settled by delivery of Nuveen Common Stock or such other securities, in cash or
otherwise; or (3) file any registration statement with the Commission
relating to the offering of any shares of Nuveen Common Stock or any securities
convertible into or exercisable or exchangeable for Nuveen Common Stock.


 


The restrictions contained in the preceding paragraph shall not apply
to (a) the Nuveen Class A Shares to be sold under the Common Stock
Underwriting Agreement, (b)  the sale of Nuveen Class A Shares by St.
Paul Travelers in connection with the Selling Stockholder Forward Agreements, (c) the
sale of Nuveen Class A Shares by St. Paul Travelers underlying the
Securities and underlying the 5.875% Mandatorily Exchangeable Securities due October 15,
2008 of Morgan Stanley, (d) the sale of shares of Nuveen Common Stock by
St. Paul Travelers pursuant to the Nuveen Repurchase Agreement, (e) the
issuance by Nuveen of shares of Nuveen Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date
hereof of which the Underwriters have been advised in writing, (f) the
grant by Nuveen of stock options, restricted stock or other awards pursuant to
Nuveen’s benefit plans in existence on the date hereof or proposed to be
approved by Nuveen’s stockholders at their 2005 annual meeting; provided that such options, restricted
stock or awards do not become exercisable or vest during such 90-day
period, or (g) transactions by St. Paul Travelers relating to shares of
Nuveen Common Stock or other securities acquired in open market transactions
after the completion of the offering of the Securities, provided that for purposes of this clause (g) no
filing under Section 16(a) of the Exchange Act shall be required or
shall be voluntarily


 


16





















 


made in
connection with subsequent sales of Nuveen Common Stock or other securities
acquired in such open market transactions. 
In addition, St. Paul Travelers, agrees that, without the prior written
consent of the Underwriters, it will not, during the period ending 90 days
after the date of the Nuveen Prospectus, make any demand for, or exercise any
right with respect to, the registration of any shares of Nuveen Common Stock or
any security convertible into or exercisable or exchangeable for Nuveen Common
Stock.  St. Paul Travelers consents to
the entry of stop transfer instructions with Nuveen’s transfer agent and
registrar against the transfer of any shares of Nuveen Common Stock held by St.
Paul Travelers except in compliance with the foregoing restrictions.


 


5.                                      Payment
of Commission of Underwriters. 
Concurrent with the payment by the Forward Counterparty to St. Paul
Travelers of the purchase price payable pursuant to the ML Forward Agreement,
St. Paul Travelers shall pay to the Underwriters, not later than 10:00 a.m.
on the Closing Date, a commission in the amount of $8,251,800 delivered in immediately
available funds to account number 930-4-019012, ABA # 021000021
(care of Merrill Lynch, Pierce, Fenner & Smith Incorporated);
Reference: ML&Co. Mandatorily Exchangeable Securities due October 15,
2007 for Nuveen A/C 045-03014.


 


6.                                      Conditions
to the Mandatory Issuer’s and the Underwriters’ Obligations.  The several obligations of the Mandatory
Issuer and the Underwriters under the ML Securities Underwriting Agreement are
subject to the following further conditions:


 


(a)                                  Subsequent
to the execution and delivery of this Agreement and the ML Securities
Underwriting Agreement and prior to the Closing Date:


 


(i)                                     there shall not
have occurred any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded
any of the securities of Nuveen or any of its subsidiaries by any “nationally
recognized statistical rating organization,” as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
and


 


(ii)                                  there shall not have
occurred any change, or any development involving a prospective change, in the
financial condition or in the earnings, business or operations of Nuveen and
its subsidiaries, taken as a whole, from that set forth in the Nuveen
Prospectus (exclusive of any amendments or supplements thereto subsequent to
the date of this Agreement) that, in the judgment of the Underwriters, is
material and adverse and that makes it, in the judgment of the Underwriters,
impracticable to market the Securities on the terms and in the manner
contemplated in the Securities Prospectus.


 


17





















 


(b)                                 The
Mandatory Issuer, the Underwriters and the Forward Counterparty shall have
received on the Closing Date a certificate, dated the Closing Date and signed
by an executive officer of Nuveen, to the effect set forth in Section 6(a)(i) above
and to the effect that the representations and warranties of Nuveen contained
in this Agreement are true and correct as of the Closing Date and that Nuveen
has complied in all material respects with all of the agreements and satisfied
in all material respects all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.


 


The officer
signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.


 


(c)                                  The
Mandatory Issuer and the Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of St.
Paul Travelers, to the effect that the representations and warranties of St.
Paul Travelers contained in this Agreement are true and correct as of the
Closing Date and that St. Paul Travelers has complied in all material respects
with all of the agreements and satisfied in all material respects all of the
conditions on its part to be performed or satisfied hereunder on or before the
Closing Date.


 


(d)                                 The
Mandatory Issuer, the Underwriters and the Forward Counterparty shall have
received on the Closing Date an opinion of Wachtell, Lipton, Rosen &
Katz, special counsel for Nuveen, dated the Closing Date, to the effect that:


 


(i)                                     the authorized
capital stock of Nuveen conforms as to legal matters to the description under
the caption “Capital Stock” contained in the Nuveen Prospectus;


 


(ii)                                  the shares of Nuveen
Common Stock owned by St. Paul Travelers have been duly authorized and are
validly issued, fully paid and non-assessable;


 


(iii)                               this Agreement has been
duly authorized, executed and delivered by Nuveen;


 


(iv)                              the Nuveen Repurchase
Agreement has been duly authorized, executed and delivered by Nuveen and is a
valid and binding agreement of Nuveen, enforceable in accordance with its terms
except as (A) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting creditors’ rights generally, (B) the availability of equitable
remedies may be limited by equitable principles of general applicability and (C) may
be limited by an implied covenant of good faith and fair dealing;


 


18





















 


(v)                                 the Bridge Facility
has been duly authorized, executed and delivered by Nuveen and is a valid and
binding agreement of Nuveen, enforceable in accordance with its terms except as
(A) the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws affecting
creditors’ rights generally, (B) the availability of equitable remedies
may be limited by equitable principles of general applicability and (C) may
be limited by an implied covenant of good faith and fair dealing;


 


(vi)                              the Separation Agreement
has been duly authorized, executed and delivered by Nuveen and is a valid and
binding agreement of Nuveen, enforceable in accordance with its terms except as
(A) the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws affecting
creditors’ rights generally, (B) the availability of equitable remedies
may be limited by equitable principles of general applicability and (C) may
be limited by an implied covenant of good faith and fair dealing;


 


(vii)                           Nuveen is not, and after
giving effect to the offering and sale of the Nuveen Class A Shares and
the application of the proceeds thereof as described in the Nuveen Prospectus
will not be, required to register as an “investment company” as such term is
defined in the 1940 Act; and


 


(viii)                        the Nuveen Registration
Statement and the Nuveen Prospectus (except for the financial statements and
related notes and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need not comment) appear on their
face to be responsive as to form in all material respects to the requirements
of the Securities Act and the applicable rules and regulations of the
Commission thereunder.


 


In the course of such counsel’s participation in the preparation of the
Nuveen Registration Statement and Nuveen Prospectus and review and discussion
of the contents thereof, although such counsel has not independently checked or
verified, and is not passing upon and assumes no responsibility for, the
accuracy, completeness, or fairness thereof, or otherwise verified the
statements made therein, other than those mentioned in subclause (i) above,
as of the Closing Date no facts have come to the attention of such counsel that
cause such counsel to believe that (i) the Nuveen Registration Statement
or the Nuveen Prospectus included therein (except for the financial statements
and related notes and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need not comment) on the date the
Nuveen Registration Statement became effective and as of the date of this
Agreement contained an untrue statement of a material fact or omitted to state
a material fact required to be stated


 


19





















 


therein or
necessary to make the statements therein not misleading or (ii) the Nuveen
Prospectus (except for the financial statements and related notes and other
financial or statistical data included therein or omitted therefrom, as to
which such counsel need not comment) as of its date or as of the Closing Date
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.


 


In rendering such opinion, such counsel may rely, without independent
verification, as to matters of fact, to the extent they deem appropriate, on
the representations of Nuveen contained herein and on certificates of responsible
officers of Nuveen and public officials. 
Such opinion will be limited to the laws of the State of New York, the
federal laws of the United States and the General Corporation Law of the State
of Delaware, and such counsel will express no opinion as to the effect on the
matters covered by such opinion of the laws of any other jurisdiction.  Such opinion may also state that such counsel
acted as special counsel to Nuveen in connection with the offering of the
Nuveen Class A Shares contemplated hereby and did not act, and has not
acted, as Nuveen’s regular outside counsel.


 


(e)                                  The
Mandatory Issuer, the Underwriters and the Forward Counterparty shall have
received on the Closing Date an opinion of Alan G. Berkshire, Esq.,
General Counsel to Nuveen, dated the Closing Date, to the effect that:


 


(i)                                     Nuveen has been
duly incorporated, is validly existing as a corporation in good standing under
the laws of the State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the Nuveen Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a Material Adverse
Effect;


 


(ii)                                  each Significant
Subsidiary of Nuveen has been duly incorporated or formed, is validly existing
in good standing under the laws of the jurisdiction of its incorporation or
formation, has the requisite corporate power and authority to own its property
and to conduct its business as described in the Nuveen Prospectus and is duly
qualified to transact such business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect;


 


20





















 


(iii)                               the Nuveen Class A
Shares to be sold by the Selling Stockholders have been duly authorized and are
validly issued, fully paid and non-assessable;


 


(iv)                              to such counsel’s
knowledge and other than as set forth in the Nuveen Prospectus, there are no legal
or governmental proceedings pending or threatened to which Nuveen or any of its
subsidiaries is a party or to which any of the properties of Nuveen or any of
its subsidiaries is subject, which, if determined adversely to Nuveen or any of
its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect;


 


(v)                                 each of the Investment
Advisory Subsidiaries is duly registered as an investment adviser under the
Advisers Act.  To the best of such
counsel’s knowledge, none of Nuveen or its subsidiaries other than the
Investment Advisory Subsidiaries is required to be registered, licensed, or
qualified as an investment adviser under the Advisers Act and the rules and
regulation of the Commission promulgated thereunder or under applicable state
laws, except where any failure to be so registered, licensed, or qualified
would not have a Material Adverse Effect. 
To such counsel’s knowledge, each of the Investment Advisory
Subsidiaries is in compliance with the Advisers Act and applicable state laws,
regulations, ordinances and rules applicable to it or its operations
relating to investment advisory activities except where any failure by any such
Investment Advisory Subsidiary to comply with any such law, regulation,
ordinance or rule would not have a Material Adverse Effect;


 


(vi)                              to the knowledge of such
counsel, neither Nuveen nor any Investment Advisory Subsidiary is in breach or
violation of or in default under any investment advisory contract which would
individually or in the aggregate have a Material Adverse Effect;


 


(vii)                           the Broker-Dealer Subsidiary
is duly registered, licensed or qualified as a broker-dealer under the Exchange
Act and in each jurisdiction where the conduct of its business requires
registration, licensing or qualification, except to the extent that the failure
to be so registered, licensed or qualified would not have a Material Adverse
Effect.  None of Nuveen or its
subsidiaries, other than the Broker-Dealer Subsidiary, is required to be
registered, licensed or qualified as a broker-dealer under the Exchange Act and
the rules and regulations of the Commission promulgated thereunder or
under the laws requiring any such registration, licensing or qualification in
any jurisdiction in which it conducts business except where any failure to be
so registered, licensed or qualified would not have a Material Adverse
Effect.  Each of Nuveen and the
Broker-Dealer Subsidiary is in compliance with all laws, regulations,
ordinances and rules (including those of any self regulatory organizations)


 


21





















 


as applicable to it or its operations relating to broker-dealer
activities except where any failure to comply with any such law, regulation,
ordinance or rule would not have, individually or in the aggregate, a
Material Adverse Effect;


 


(viii)                        except as disclosed in the
Nuveen Prospectus, the execution and delivery by Nuveen of, and the performance
by Nuveen of its obligations under, this Agreement, the Common Stock
Underwriting Agreement, the Nuveen Repurchase Agreement, the Bridge Facility
and the Separation Agreement will not contravene (i) any provision of
applicable law or (ii) the certificate of incorporation or by-laws of
Nuveen or, (iii) to such counsel’s knowledge, any agreement or other
instrument binding upon Nuveen or any of its subsidiaries that is material to
Nuveen and its subsidiaries, taken as a whole, or, (iv) to such counsel’s
knowledge, any judgment, order or decree of any governmental body, agency or
court having jurisdiction over Nuveen or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any U.S. federal,
Illinois State or State of Delaware governmental body or agency is required for
the performance by Nuveen of its obligations under this Agreement, the Common
Stock Underwriting Agreement, the Nuveen Repurchase Agreement, the Bridge
Facility and the Separation Agreement except those which have been obtained and
made, and as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Nuveen Class A Shares
(it being understood that this opinion is limited to those consents, approvals,
authorizations, orders, and qualifications that, in such counsel’s experience,
are normally applicable to transactions of the type contemplated by this
Agreement and the Common Stock Underwriting Agreement); and


 


(ix)                                the Nuveen Registration
Statement and the Nuveen Prospectus (except for the financial statements and
related notes and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need not comment) appear on their
face to be responsive as to form in all material respects to the requirements
of the Securities Act and the applicable rules and regulations of the
Commission thereunder.


 


In the course of such counsel’s participation in the preparation of the
Nuveen Registration Statement and Nuveen Prospectus and review and discussion
of the contents thereof, although such counsel has not independently checked or
verified, and is not passing upon and assumes no responsibility for, the
accuracy, completeness, or fairness thereof, or otherwise verified the
statements made therein (it being understood that such counsel has prepared and
reviewed the disclosures incorporated by reference in the Prospectus under the
captions “Business—Regulatory,” and “Legal Proceedings”), as of the Closing
Date no facts have come to the attention of such counsel that cause such
counsel to believe


 


22





















 


that (i) the
Nuveen Registration Statement or the prospectus included therein (except for
the financial statements and related notes and other financial or statistical
data included therein or omitted therefrom, as to which such counsel need not
comment) on the date the Nuveen Registration Statement became effective and as
of the date of this Agreement contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or (ii) the Nuveen
Prospectus (except for the financial statements and related notes and other
financial or statistical data included therein or omitted therefrom, as to
which such counsel need not comment) as of its date or as of the Closing Date
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.


 


In rendering such opinion, such counsel may rely, without independent
verification, (x) as to matters of fact, to the extent he deems appropriate, on
certificates of responsible officers of Nuveen and public officials, and (y) as
to matters involving the application of any jurisdiction other than the State
of Illinois, the federal laws of the United States and the General Corporation
Law of the State of Delaware, to the extent he deems appropriate and specified
in such opinion, upon the opinion of other counsel of good standing whom he
reasonably believes to be reliable and who are reasonably satisfactory to
counsel for the Mandatory Issuer, the Underwriters and the Forward
Counterparty.


 


(f)                                    The
Mandatory Issuer, the Underwriters and the Forward Counterparty shall have
received on the Closing Date an opinion of Wachtell, Lipton, Rosen &
Katz, counsel for St. Paul Travelers, dated the Closing Date, to the effect
that:


 


(i)                                     this Agreement has
been duly authorized, executed and delivered by or on behalf of St. Paul
Travelers;


 


(ii)                                  the ML Forward
Agreement has been duly authorized, executed and delivered by St. Paul
Travelers and is a valid and binding agreement of St. Paul Travelers,
enforceable in accordance with its terms except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors’ rights
generally, (B) the availability of equitable remedies may be limited by
equitable principles of general applicability and (C) may be limited by an
implied covenant of good faith and fair dealing;


 


(iii)                               the Nuveen Repurchase
Agreement has been duly authorized, executed and delivered by St. Paul
Travelers and is a valid and binding agreement of St. Paul Travelers,
enforceable against St. Paul Travelers in accordance with its terms except as (A) the
enforceability


 


23





















 


thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting creditors’
rights generally, (B) the availability of equitable remedies may be
limited by equitable principles of general applicability and (C) may be
limited by an implied covenant of good faith and fair dealing;


 


(iv)                              the Separation Agreement
has been duly authorized, executed and delivered by St. Paul Travelers and is a
valid and binding agreement of St. Paul Travelers, enforceable against St. Paul
Travelers in accordance with its terms except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors’ rights
generally, (B) the availability of equitable remedies may be limited by
equitable principles of general applicability and (C) may be limited by an
implied covenant of good faith and fair dealing;


 


(v)                                 the execution and
delivery by St. Paul Travelers of, and the performance by St. Paul Travelers of
its obligations under, this Agreement, the ML Forward Agreement, the Nuveen Repurchase
Agreement and the Separation Agreement will not contravene any provision of
applicable law, or the certificate of incorporation or by-laws of St. Paul
Travelers, or, to such counsel’s knowledge, any agreement or other instrument
binding upon St. Paul Travelers that is material to St. Paul Travelers and its
subsidiaries taken as a whole, or, to such counsel’s knowledge, any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over St. Paul Travelers, and no consent, approval, authorization or order of,
or qualification with, any U.S. federal, New York State or State of Delaware
governmental body or agency is required for the performance by St. Paul
Travelers of its obligations under this Agreement, the Selling Stockholder
Forward Agreements, the Nuveen Repurchase Agreement and the Separation
Agreement, except those which have been obtained and made, and as may be
required by the securities or Blue Sky laws of the various states in connection
with offer and sale of the Nuveen Class A Shares (it being understood that
this opinion is limited to the consents, approvals, authorizations, orders, and
qualifications that, in such counsel’s experience, are normally applicable to
transactions of the type contemplated by this Agreement and the Common Stock
Underwriting Agreement); and


 


(vi)                              upon payment for the
Nuveen Class A Shares to be sold by St. Paul Travelers pursuant to the ML
Forward Agreement, delivery of such Nuveen Class A Shares to the Forward
Counterparty, registration of such Nuveen Class A Shares in the name of
the Forward Counterparty (assuming that the Forward Counterparty does not have
notice of any adverse claim (within the meaning of Section 8-105 of
the UCC) to such Nuveen Class A Shares), (A) the Forward Counterparty
shall be a


 


24





















 


“protected purchaser” of such Nuveen Class A Shares within the
meaning of Section 8-303 of the UCC, and (B) no action based on
any “adverse claim”, within the meaning of Section 8-102 of the UCC,
to such Nuveen Class A Shares may be validly asserted against the Forward
Counterparty; in giving this opinion, counsel for St. Paul Travelers may assume
that when such payment, delivery and crediting occur, such Nuveen Class A
Shares will have been registered in the name of the Forward Counterparty on
Nuveen’s share registry in accordance with its certificate of incorporation,
bylaws and applicable law.


 


In rendering such opinion, such counsel may rely, without independent
verification, (x) as to matters of fact, to the extent they deem appropriate,
upon the representations of each Selling Stockholder contained herein and in
other documents and instruments, provided that the Mandatory Issuer, the
Underwriters and the Forward Counterparty are provided copies of such other
documents and instruments and they are reasonably satisfactory to counsel for
the Mandatory Issuer, the Underwriters and the Forward Counterparty, and (y) as
to legal matters, to the extent they deem appropriate and specified in such
opinion, upon the opinion or opinions of other counsel of good standing whom
they reasonably believe to be reliable and who are reasonably satisfactory to
counsel for the Mandatory Issuer, the Underwriters and the Forward
Counterparty.


 


(g)                                 The
Mandatory Issuer, the Underwriters and the Forward Counterparty shall have
received on the Closing Date an opinion of Davis Polk & Wardwell,
counsel for the Underwriters, dated the Closing Date, covering the matters
referred to in Sections 6(d)(iii) and the penultimate paragraph of Section 6(d) above,
and further to the effect that the statements relating to legal matters or
documents included in the Nuveen Prospectus under the caption “Underwriting”
fairly summarize in all material respects such matters or documents.


 


With respect to the penultimate paragraph in Section 6(d) above,
Davis Polk & Wardwell may state that their opinions and beliefs are
based upon their participation in the preparation of the Nuveen Registration
Statement and the Nuveen Prospectus and any amendments or supplements thereto
(other than the documents incorporated by reference) and upon review and
discussion of the contents thereof (including documents incorporated by
reference), but are without independent check or verification, except as
specified.


 


The opinions of Wachtell, Lipton, Rosen & Katz described in
Sections 6(d) and 6(e) above (and any opinions of counsel for
St. Paul Travelers referred to in the immediately preceding paragraph) and the
opinion of Alan G. Berkshire in Section 6(e) above shall be rendered
to the Mandatory Issuer and the Underwriters at the request of Nuveen or St.
Paul Travelers, as the case may be, and shall so state therein.


 


25





















 


(h)                                 The
Mandatory Issuer, the Underwriters and the Forward Counterparty shall have
received, on each of the date hereof and the Closing Date, a letter dated the
date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Mandatory Issuer, the Underwriters and the Forward
Counterparty, from KPMG LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the Nuveen
Registration Statement and the Nuveen Prospectus; provided that the letter delivered on the Closing Date shall
use a “cut-off date” not earlier than the date hereof.


 


(i)                                     The
“lock-up” agreements, each substantially in the form of Exhibit A to the
Common Stock Underwriting Agreement, between the Underwriters under the Common
Stock Underwriting Agreement and certain officers and directors of Nuveen
relating to sales and certain other dispositions of shares of Nuveen Common
Stock or certain other securities, copies of which shall have been delivered to
the Mandatory Issuer and the Underwriters on or before the date hereof, shall
be in full force and effect on the Closing Date.


 


(j)                                     The
Underwriters shall have received at or prior to 10:00 a.m., New York City
time, on the Closing Date payment of the commission set forth in Section 5
hereof.


 


7.                                       Covenants
of Nuveen.  Nuveen covenants with the
Mandatory Issuer, the Underwriters and the Forward Counterparty as follows:


 


(a)                                  Nuveen
shall furnish to the Mandatory Issuer and each Underwriter, without charge,
three signed copies of the Nuveen Registration Statement (including exhibits
thereto and documents incorporated by reference) and furnish to the Mandatory
Issuer and each Underwriter in New York City, without charge, prior to 10:00 a.m.
New York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 7(c) below, as
many copies of the Nuveen Prospectus, any documents incorporated therein by
reference and any supplements and amendments thereto or to the Nuveen
Registration Statement as the Mandatory Issuer and the Underwriters may
reasonably request.


 


(b)                                 Before
amending or supplementing the Nuveen Registration Statement or the Nuveen
Prospectus, Nuveen shall furnish to the Mandatory Issuer and the Underwriters a
copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Mandatory Issuer and the
Underwriters reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule.


 


26





















 


(c)                                  If,
during such period after the first date of the public offering of the
Securities as in the opinion of counsel for the Underwriters the Nuveen
Prospectus is required by law to be delivered in connection with sales of
Securities by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the Nuveen
Prospectus in order to make the statements therein, in the light of the
circumstances when the Nuveen Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Mandatory Issuer and the
Underwriters, it is necessary to amend or supplement the Nuveen Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses the Mandatory Issuer and the Underwriters shall furnish to
Nuveen) to which Securities may have been sold by the Mandatory Issuer and the
Underwriters on behalf and to any other dealers upon request, either amendments
or supplements to the Nuveen Prospectus so that the statements in the Nuveen
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Nuveen Prospectus is delivered to a purchaser, be
misleading or so that the Nuveen Prospectus, as amended or supplemented, will
comply with law.


 


(d)                                 To
use reasonable efforts to qualify the Nuveen Class A Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Mandatory Issuer and the Underwriters shall reasonably request.


 


(e)                                  To
make generally available to Nuveen’s security holders and to the Mandatory
Issuer and the Underwriters as soon as practicable an earning statement
covering the twelve-month period ending June 30, 2006 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.


 


8.                                       Expenses.  Whether or not the transactions contemplated
in the ML Securities Underwriting Agreement are consummated or the ML
Securities Underwriting Agreement and this Agreement are terminated, St. Paul
Travelers agrees to pay or cause to be paid all expenses incident to the
performance of its and Nuveen’s obligations under this Agreement, including: (i) the
fees, disbursements and expenses of Nuveen’s counsel, Nuveen’s accountants and
counsel for the Selling Stockholders in connection with the registration and
delivery of the Nuveen Class A Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Nuveen Registration Statement, any Nuveen preliminary prospectus, the Nuveen
Prospectus and amendments and supplements to any of the foregoing, including
all printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) the cost of printing or producing any Blue Sky memorandum
in connection with the offer and sale of the Nuveen Class A Shares under
state securities laws and all expenses in connection with the qualification of
the Nuveen Class A Shares to be sold under the ML Forward Agreement for
offer and sale under state


 


27





















 


securities laws
as provided in Section 7(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky memorandum, (iii) all
costs and expenses incident to listing the Nuveen Class A Shares on the
New York Stock Exchange, (iv) the cost of printing certificates
representing the Nuveen Class A Shares to be sold under the ML Forward
Agreement, (v) the costs and charges of any transfer agent, registrar or
depositary, (vi) the costs and expenses of Nuveen relating to investor
presentations on any “road show” undertaken in connection with the marketing of
the offering of the Securities, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of Nuveen, travel and lodging expenses of
the representatives (who, for the avoidance of doubt, shall not include the
Underwriters) and officers of Nuveen and any such consultants, and the cost of
any aircraft chartered in connection with the road show, (vii) the
document production charges and expenses associated with printing this
Agreement and (viii) all other costs and expenses incident to the
performance of the obligations of Nuveen and St. Paul Travelers hereunder for
which provision is not otherwise made in this Section.  It is understood, however, that except as provided
in this Section, Section 9 entitled “Indemnity” and Section 10
entitled “Contribution”, the Mandatory Issuer, the Forward Counterparty and the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any
of the Nuveen Class A Shares by them and any advertising expenses
connected with any offers they may make.


 


The provisions of this Section shall not supersede or otherwise
affect any agreement that Nuveen and St. Paul Travelers may otherwise have for
the allocation of such expenses among themselves.


 


9.                                       Indemnity.  (a) Nuveen agrees to indemnify and hold
harmless the Mandatory Issuer, each Underwriter, each person, if any, who
controls the Mandatory Issuer or any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act and each affiliate
of the Mandatory Issuer or any Underwriter within the meaning of Rule 405
under the Securities Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim), as incurred, caused by any untrue statement or alleged untrue
statement of a material fact contained in the Nuveen Registration Statement or
any amendment thereof, any Nuveen preliminary prospectus or the Nuveen
Prospectus or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon (i) information
relating to any Underwriter, the


 


28





















 


Mandatory
Issuer or the Forward Counterparty furnished to Nuveen in writing by such
Underwriter, Mandatory Issuer or Forward Counterparty expressly for use
therein, or (ii) the Selling Stockholder Information; provided, however, that the foregoing
indemnity agreement with respect to any Nuveen preliminary prospectus shall not
inure to the benefit of either Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities or Nuveen Class A
Shares, or any person controlling such Underwriter or affiliate of such
Underwriter within the meaning of Rule 405 of the Securities Act, if a
copy of the Nuveen Prospectus (as then amended or supplemented if Nuveen shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Securities or Nuveen Class A Shares to such person, and if the Nuveen
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless such failure is the
result of noncompliance by Nuveen with Section 7(a) hereof.


 


(b)                                 St.
Paul Travelers agrees to indemnify and hold harmless the Mandatory Issuer, each
Underwriter, each person, if any, who controls the Mandatory Issuer or any
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act and each affiliate of the Mandatory
Issuer or any Underwriter within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim), as incurred, caused by any untrue statement or alleged untrue
statement of a material fact contained in the Nuveen Registration Statement or
any amendment thereof, any Nuveen preliminary prospectus or the Nuveen
Prospectus or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to the Selling Stockholder Information; provided, however, that the foregoing indemnity agreement
shall not cover any such losses, claims, damages or liabilities as are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter, the Mandatory
Issuer or Forward Counterparty furnished to Nuveen in writing by such
Underwriter, the Mandatory Issuer or Forward Counterparty expressly for use
therein; and provided further, however, that the foregoing indemnity
agreement with respect to any Nuveen preliminary prospectus shall not inure to
the benefit of either Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Securities or Nuveen Class A
Shares, or any person controlling such Underwriter or affiliate of such
Underwriter within the meaning of Rule 405 of the Securities Act, if a
copy of the Nuveen Prospectus (as then amended or supplemented if Nuveen shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person,


 


29





















 


if required by
law so to have been delivered, at or prior to the written confirmation of the
sale of the Securities or Nuveen Class A Shares to such person, and if the
Nuveen Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such failure
is the result of noncompliance by Nuveen with Section 7(a) hereof.  The liability of St. Paul Travelers under the
indemnity agreement contained in this paragraph shall be limited to an amount
equal to the aggregate purchase price received or to be received by St. Paul
Travelers under the ML Forward Agreement less any commissions paid or payable
under this Agreement.


 


(c)                                  Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Mandatory Issuer, Nuveen, St. Paul Travelers, the directors of Nuveen, the
officers of Nuveen who sign the Nuveen Registration Statement, and each person,
if any, who controls the Mandatory Issuer, Nuveen or St. Paul Travelers within
the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Nuveen Registration Statement or any amendment
thereof, any Nuveen preliminary prospectus or the Nuveen Prospectus (as amended
or supplemented if Nuveen shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to such
Underwriter furnished to Nuveen in writing by such Underwriter expressly for
use in the Nuveen Registration Statement, any Nuveen preliminary prospectus,
the Nuveen Prospectus or any amendments or supplements thereto.


 


(d)                                 In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to Section 9(a), 9(b) or 9(c) hereof, such person (the “indemnified party”) shall promptly notify
the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding.  In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them.  It is understood
that the indemnifying party shall not, in


 


30





















 


respect of the
legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (i) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for all Underwriters and all persons, if any, who control any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act or who are affiliates of any Underwriter within the meaning
of Rule 405 under the Securities Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the
Mandatory Issuer, its directors, and each person, if any, who controls the
Mandatory Issuer within the meaning of either such Section or who are
affiliates of the Mandatory Issuer within the meaning of Rule 405 under
the Securities Act, (iii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for Nuveen, its directors, its officers
who sign the Nuveen Registration Statement and each person, if any, who
controls Nuveen within the meaning of either such Section and (iv) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for St. Paul Travelers and all persons, if any, who control St. Paul
Travelers within the meaning of either such Section, and that all such fees and
expenses shall be reimbursed as they are incurred.  In the case of any such separate firm for the
Mandatory Issuer and such control persons and affiliates of the Mandatory
Issuer, such firm shall be designated in writing by the Mandatory Issuer.  In the case of any such separate firm for the
Underwriters and such control persons and affiliates of any Underwriters, such
firm shall be designated in writing by the Underwriters.  In the case of any such separate firm for
Nuveen, and such directors, officers and control persons of Nuveen, such firm
shall be designated in writing by Nuveen. 
In the case of any such separate firm for St. Paul Travelers and such
control persons of St. Paul Travelers, such firm shall be designated in writing
by St. Paul Travelers.  The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.  No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.


 


10.                                 Contribution.  (a) To the extent the indemnification
provided for in Section 9 hereof is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by


 


31





















 


Nuveen, St.
Paul Travelers, the Mandatory Issuer and the Underwriters, respectively, as set
forth in Section 10(b) below, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of Nuveen, St.
Paul Travelers, the Mandatory Issuer and the Underwriters, respectively, in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.


 


(b)                                 For
purposes of determining the relative benefits of Nuveen, St. Paul Travelers,
the Mandatory Issuer and the Underwriters, respectively, the net proceeds from
the offering of the Securities (before deducting expenses) shall be deemed to
have been received by Nuveen and St. Paul Travelers, and the relative benefits
of Nuveen and St. Paul Travelers on the one hand and the Underwriters on the
other hand, shall be in the same respective proportions as the net proceeds
from the offering of the Securities (before deducting expenses) deemed received
by Nuveen and St. Paul Travelers and the total underwriting discounts and
commissions received by the Underwriters (including pursuant to this
Agreement), in each case as set forth in the table on the cover of the
Securities Prospectus Supplement (replacing Nuveen and St. Paul Travelers for
the Mandatory Issuer) and including any discounts received by affiliates of the
Underwriters under the Selling Stockholder Forward Agreements, bear to the
aggregate Public Offering Price of the Securities, and the Mandatory Issuer
shall be deemed not to have received any benefits.


 


(c)                                  The
relative fault of Nuveen, St. Paul Travelers, the Mandatory Issuer, the
Underwriters and the Forward Counterparty, respectively, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by Nuveen, St. Paul Travelers,
the Mandatory Issuer, the Underwriters or the Forward Counterparty and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.


 


(d)                                 The
Underwriters’ respective obligations to contribute pursuant to this Section 10
are several in proportion to the aggregate principal amount of Securities they
have purchased under the ML Securities Underwriting Agreement, and not joint.


 


(e)                                  The
liability of St. Paul Travelers under the contribution agreement contained in
this Section 10 shall be limited to an amount equal to the aggregate
purchase price received or to be received by St. Paul Travelers under the ML
Forward Agreement less any commissions paid or payable under this Agreement; provided that the liability of the
Mandatory Issuer, the Underwriters and the Forward Counterparty, collectively,
under the contribution agreement contained


 


32





















 


in this Section 10
shall not be increased as a result of this limitation on the liability of St.
Paul Travelers.


 


(f)                                    Nuveen,
St. Paul Travelers, the Mandatory Issuer and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section 10
were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in this Section 10.  The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim.  Notwithstanding the
provisions of this Section 10, the Mandatory Issuer and the Underwriters,
collectively, shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that the Mandatory Issuer and the Underwriters, collectively, have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.


 


(g)                                 The
remedies provided for in Section 9 and this Section 10 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.


 


11.                                 Survival.  The indemnity provisions contained in Section 9,
the contribution provisions contained in Section 10, and the representations,
warranties and other statements of Nuveen and St. Paul Travelers contained in
this Agreement shall remain operative and in full force and effect regardless
of (a) any termination of this Agreement, (b) any investigation made
by or on behalf of any Underwriter, any person controlling any Underwriter or
any affiliate of any Underwriter, the Mandatory Issuer, any person controlling
the Mandatory Issuer or any affiliate of the Mandatory Issuer, the Forward
Counterparty, any person controlling the Forward Counterparty or any affiliate
of the Forward Counterparty, St. Paul Travelers or any person controlling St.
Paul Travelers, or Nuveen, its officers or directors or any person controlling
Nuveen and (c) acceptance of and payment for any of the Securities.


 


12.                                 Termination.  This Agreement shall terminate, if after the
execution and delivery of this Agreement and prior to the Closing Date the ML
Securities Underwriting Agreement shall have terminated in accordance with the
termination provisions contained therein prior to the Closing Date.


 


33





















 


13.                                 Effectiveness.
This Agreement shall become effective upon the effectiveness of the ML
Securities Underwriting Agreement.


 


14.                                 Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.


 


15.                                 Applicable
Law. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.


 


16.                                 Headings.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.


 


17.                                 Notices.  All communications hereunder shall be in
writing and effective only upon receipt and if to the Mandatory Issuer shall be
delivered, mailed or sent to Merrill Lynch & Co., Inc., 4 World
Financial Center, New York, NY 10080, Attention:  Treasurer’s Office; if to the Underwriters
shall be delivered, mailed or sent to Merrill Lynch, Pierce, Fenner &
Smith Incorporated, 4 World Financial Center, New York, New York, 10080,
Attention:  Global Origination Counsel,
and Morgan Stanley & Co. Incorporated, 1585 Broadway, New
York, New York 10036, Attention: Syndicate Desk; if to the Forward
Counterparty shall be delivered, mailed or sent to Merrill Lynch & Co., Inc.,
4 World Financial Center, New York, NY 10080; if to Nuveen shall be delivered,
mailed or sent to Nuveen Investments, Inc., 333 West Wacker Drive,
Chicago, Illinois 60606 Attention: Alan G. Berkshire, Esq.; and if to St.
Paul Travelers shall be delivered, mailed or sent to The St. Paul Travelers
Companies, Inc., 385 Washington Street, Saint Paul, MN 55102,
Attention:  Kenneth F. Spence, III.


 


34





















 


IN WITNESS WHEREOF, each of the Mandatory Issuer, Nuveen, St. Paul
Travelers, each Underwriter and the Forward Counterparty has caused this
Agreement to be duly executed on its behalf as of the date hereof.


 


 


	
   

  	
  MERRILL
  LYNCH & CO., INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jens Berding

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jens Berding

  
	
   

  	
   

  	
  Title:

  	
  ML Treasury

  
					



 


 


	
   

  	
  NUVEEN
  INVESTMENTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alan G. Berkshire

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Alan G.
  Berkshire

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  
					



 


 


	
   

  	
  THE ST. PAUL
  TRAVELERS

  COMPANIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Samuel G. Liss

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Samuel G.
  Liss

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  
					



 


35





















 


	
   

  	
  MERRILL
  LYNCH, PIERCE, FENNER

  & SMITH INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael P. McCleary

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael P.
  McCleary

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
					



 


 


	
   

  	
  MORGAN
  STANLEY & CO.

  INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John D. Tyree

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John D. Tyree

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Director

  
					



 


 


	
   

  	
  MERRILL
  LYNCH INTERNATIONAL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kristen Chung

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Kristen
  Chung

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
					



 


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