CONFORMED COPY
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FIVE-YEAR
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of December 7, 2000
among
XXXXXXXX FINANCIAL INC.,
JANUS CAPITAL CORPORATION,
THE LENDERS NAMED HEREIN,
XXXXX FARGO BANK WEST, N.A., as Documentation Agent,
THE CHASE MANHATTAN BANK, as Syndication Agent,
and
CITIBANK, N.A.,
as Administrative Agent and Swingline Lender,
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CHASE SECURITIES, INC., as Co-Arranger and Co-Book Manager
XXXXXXX XXXXX XXXXXX INC., as Advisor, Co-Arranger and Co-Book Manager
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS..................................................................................1
SECTION 1.01. Defined Terms....................................................................1
SECTION 1.02. Terms Generally.................................................................12
ARTICLE II. THE CREDITS................................................................................12
SECTION 2.01. Commitments.....................................................................12
SECTION 2.02. Loans...........................................................................12
SECTION 2.03. Competitive Bid Procedure.......................................................13
SECTION 2.04. Standby Borrowing Procedure.....................................................15
SECTION 2.05. Interest Elections..............................................................15
SECTION 2.06. Fees............................................................................16
SECTION 2.07. Repayment of Loans; Evidence of Debt............................................16
SECTION 2.08. Interest on Loans...............................................................17
SECTION 2.09. Default Interest................................................................18
SECTION 2.10. Alternate Rate of Interest......................................................18
SECTION 2.11. Termination and Reduction of Commitments........................................18
SECTION 2.12. Prepayment......................................................................18
SECTION 2.13. Reserve Requirements; Change in Circumstances...................................19
SECTION 2.14. Change in Legality..............................................................20
SECTION 2.15. Indemnity.......................................................................20
SECTION 2.16. Pro Rata Treatment..............................................................21
SECTION 2.17. Sharing of Setoffs..............................................................21
SECTION 2.18. Payments........................................................................21
SECTION 2.19. Taxes...........................................................................22
SECTION 2.20. Termination or Assignment of Commitments Under Certain Circumstances............23
SECTION 2.21. Lending Offices and Lender Certificates; Survival of Indemnity..................23
SECTION 2.22. Swingline Loans.................................................................24
SECTION 2.23. Increase in Total Commitment....................................................25
ARTICLE III. REPRESENTATIONS AND WARRANTIES............................................................26
SECTION 3.01. Corporate Existence and Standing................................................26
SECTION 3.02. Authorization and Validity......................................................26
SECTION 3.03. No Conflict; Governmental Consent...............................................26
SECTION 3.04. Compliance with Laws; Environmental and Safety Matters..........................26
SECTION 3.05. Financial Statements............................................................27
SECTION 3.06. No Material Adverse Change......................................................27
SECTION 3.07. Subsidiaries....................................................................27
SECTION 3.08. Litigation; Contingent Obligations..............................................27
SECTION 3.09. Material Agreements.............................................................27
SECTION 3.10. Regulation U....................................................................27
SECTION 3.11. Investment Company Act; Public Utility Holding Company Act......................28
SECTION 3.12. Use of Proceeds.................................................................28
SECTION 3.13. Taxes...........................................................................28
SECTION 3.14. Accuracy of Information.........................................................28
SECTION 3.15. No Undisclosed Dividend Restrictions............................................28
ARTICLE IV. CONDITIONS OF LENDING......................................................................28
SECTION 4.01. All Borrowings, Extension of Maturity Date and Increase in
Total Commitment .....................................................................28
SECTION 4.02. Conditions Precedent to Closing.................................................29
ARTICLE V. AFFIRMATIVE COVENANTS.......................................................................29
SECTION 5.01. Conduct of Business; Maintenance of Ownership of Subsidiaries and
Maintenance of Properties.............................................................30
SECTION 5.02. Insurance.......................................................................30
SECTION 5.03. Compliance with Laws and Payment of Material Obligations and Taxes..............30
SECTION 5.04. Financial Statements, Reports, etc..............................................30
SECTION 5.05. Other Notices...................................................................31
SECTION 5.06. Books and Records; Access to Properties and Inspections.........................31
SECTION 5.07. Use of Proceeds.................................................................31
ARTICLE VI. NEGATIVE COVENANTS.........................................................................31
SECTION 6.01. Indebtedness....................................................................32
SECTION 6.02. Liens...........................................................................32
SECTION 6.03. Sale and Lease-Back Transactions................................................33
SECTION 6.04. Mergers, Consolidations and Transfers of Assets.................................34
SECTION 6.05. Transactions with Affiliates....................................................34
SECTION 6.06. Certain Other Agreements........................................................34
SECTION 6.07. Certain Financial Covenants.....................................................35
SECTION 6.08. Margin Stock....................................................................35
ARTICLE VII. EVENTS OF DEFAULT.........................................................................35
ARTICLE VIII. GUARANTEE................................................................................37
ARTICLE IX. THE AGENT..................................................................................38
ARTICLE X. MISCELLANEOUS...............................................................................39
SECTION 10.01. Notices........................................................................39
SECTION 10.02. Survival of Agreement..........................................................40
SECTION 10.03. Binding Effect.................................................................40
SECTION 10.04. Successors and Assigns.........................................................40
SECTION 10.05. Expenses; Indemnity............................................................42
SECTION 10.06. Right of Setoff................................................................43
SECTION 10.07. Applicable Law.................................................................43
SECTION 10.08. Waivers; Amendment.............................................................43
SECTION 10.09. Interest Rate Limitation.......................................................44
SECTION 10.10. Entire Agreement...............................................................44
SECTION 10.11. Waiver of Jury Trial...........................................................44
SECTION 10.12. Severability...................................................................44
SECTION 10.13. Counterparts...................................................................44
SECTION 10.14. Headings.......................................................................44
SECTION 10.15. Jurisdiction; Consent to Service of Process....................................44
SECTION 10.16. Confidentiality................................................................45
Schedule 2.01 Commitments
Schedule 3.07 Subsidiaries
Schedule 3.08 Litigation
Schedule 3.15 Dividend Restrictions
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Form of Assignment and Acceptance
Exhibit C-1 Form of Opinion of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
Exhibit C-2 Form of Opinion of Xxxxx & Xxxxxxx LLP
Exhibit D Form of Compliance Certificate
Exhibit E Form of Confidentiality Agreement
FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT
FACILITY AGREEMENT dated as of December 7, 2000, among
XXXXXXXX FINANCIAL INC., a Delaware corporation ("Xxxxxxxx"
or a "Borrower"), JANUS CAPITAL CORPORATION, a Colorado
corporation ("Janus" or a "Borrower", and together with
Xxxxxxxx, the Borrowers"), the lenders party hereto (the
"Lenders"), CITIBANK, N.A., as Administrative Agent for the
Lenders (in such capacity, the "Agent") and as Swingline
Lender, XXXXX FARGO BANK WEST, N.A., as Documentation Agent
for the Lenders, and THE CHASE MANHATTAN BANK, as
Syndication Agent for the Lenders.
The Borrowers have requested the Lenders to extend credit in
order to enable them to borrow on a standby revolving credit basis on and after
the date hereof and at any time and from time to time prior to the Maturity Date
(such term and each other capitalized term used but not otherwise defined herein
having the meaning assigned to it in Article I) a principal amount not in excess
of $300,000,000 at any time outstanding; of which Xxxxxxxx shall be permitted to
borrow a principal amount not in excess of $200,000,000 at any time outstanding
and Janus shall be permitted to borrow a principal amount not in excess of
$100,000,000 at any time outstanding; provided that Janus' obligations hereunder
are guaranteed by Xxxxxxxx. The Borrowers have also requested the Lenders to
provide a procedure pursuant to which the Lenders may be invited to bid on an
uncommitted basis on short-term borrowings by each of the Borrowers.
The proceeds of borrowings hereunder are to be used for
working capital and general corporate purposes including, without limitation,
(a) to repurchase outstanding shares of capital stock of either of the Borrowers
or their subsidiaries and (b) to finance acquisitions by the Borrowers.
The Lenders are willing to extend such credit to the Borrowers
on the terms and subject to the conditions herein set forth. Accordingly, the
Borrowers, the Lenders and the Agent agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Adjusted LIBO Rate" shall mean, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the product of
(a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire supplied by the Agent in the form of Exhibit F.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified and in any case shall include, when used with respect to the
Borrower or any Subsidiary, any joint venture in which the Borrower or such
Subsidiary holds an equity interest.
"Agent's Fees" shall have the meaning assigned to such term in
Section 2.06(b).
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate
of interest per annum publicly announced from time to time by the Agent as its
prime rate in effect at its principal office in New York City; the Prime Rate is
not intended to be the lowest rate of interest charged by the Agent in
connection with extensions of credit to debtors; each change in the Prime Rate
shall be effective on the date such
change is publicly announced as effective. "Base CD Rate" shall mean the sum of
(a) the product of (i) the Three-Month Secondary CD Rate and (ii) Statutory
Reserves and (b) the Assessment Rate. "Three-Month Secondary CD Rate" shall
mean, for any day, the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if such
rate shall not be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at approximately
10:00 a.m., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Agent from three New
York City negotiable certificate of deposit dealers of recognized standing
selected by it. "Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by it. If
for any reason the Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base CD
Rate or the Federal Funds Effective Rate or both for any reason, including the
inability or failure of the Agent to obtain sufficient quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined without
regard to clause (b) or (c), or both, of the first sentence of this definition,
as appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" shall mean on any date, with respect
to the Loans comprising any Eurodollar Standby Borrowing, the Facility Fee, or
the Utilization Fee, as the case may be, the applicable percentage set forth in
the table below based upon the Leverage Ratio as of the most recent
determination date; provided that until the delivery of financial statements
under Section 5.04(a) as of the end of and for the first fiscal year commencing
after the Effective Date, the "Applicable Percentage" for all purposes shall be
the applicable rate per annum set forth below in Level 1:
Eurodollar Standby Borrowings, Facility Fee and Utilization Fee
---------------------------------------------------------------
Eurodollar Facility Utilization
Leverage Ratio: Spread Fee Fee
---------------
Level 1
-------
Less than or equal to 1.00 to 0.300% 0.150% 0.175%
1.00
Level 2
-------
Greater than 1.00 to 1.00 and
less than or equal to 1.50 to
1.00 0.375% 0.175% 0.250%
Xxxxx 0
-------
Greater than 1.50 to 1.00 0.500% 0.250% 0.375%
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of Xxxxxxxx'x fiscal year based
upon Xxxxxxxx'x consolidated financial statements delivered pursuant to Section
5.04(a) or (b) and (ii) each change in the Applicable Percentage resulting from
a change in the Leverage Ratio shall be effective during the period commencing
on and including the date of delivery to the Agent of such consolidated
financial statements indicating such change and ending on the date immediately
preceding the effective date of the next such change; provided that the Leverage
Ratio shall be deemed to be at Level 3 at the option of the Agent or at the
request of the Required Lenders if Xxxxxxxx fails to deliver the consolidated
financial statements required to be delivered by it pursuant to Section 5.04(a)
or (b), during the period from the expiration of the time for delivery thereof
until such consolidated financial statements are delivered.
"Assessment Rate" shall mean, for any day, the annual
assessment rate in effect on such day that is payable by a member of the Bank
Insurance Fund classified as "well-capitalized" and within supervisory subgroup
"B" (or a comparable successor risk classification) within the meaning of 12
C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance
Corporation for insurance by such Corporation of time deposits made in dollars
at the offices of such member in the United States; provided that if, as a
result of any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be reasonably determined by the Agent to be
representative of the cost of such insurance to the Lenders.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the Agent,
in the form of Exhibit B.
"Attributable Debt" shall mean, in connection with a Sale and
Leaseback Transaction, the present value (discounted in accordance with GAAP at
the debt rate implied in the lease) of the obligations of the lessee for rental
payments during the term of the Lease.
"Average Assets Under Management" shall mean, on any date, the
average of assets under management by Xxxxxxxx and its Consolidated Subsidiaries
for the period of three consecutive months ending on such date, the average of
which is computed by accumulating the daily total for assets under management
and dividing such result by the total number of days during such three month
period, which computation shall be made in a manner consistent with the
computations reported in Xxxxxxxx'x Current Report on Form 8-K filed with the
Securities and Exchange Commission each month. For any date that is not the last
day of a month, the average will be computed based upon the last day of the
month most recently ended prior to such date and in the same manner described
herein.
"B Share Fees" shall mean (a) the contingent deferred sales
charges payable by an investor in a load fund offered by Janus upon any
redemption by such investor prior to a certain number of years after such
investor's investment in such fund and (b) the distribution fees payable by an
investor in a load fund offered by Janus, in each case payable at the times and
in the amounts described in the Janus World Funds plc prospectus dated October
23, 2000, the Janus Universal Funds prospectus dated March 8, 2000, in each case
as amended from time to time, or the prospectus for any other substantially
similar fund.
"B Share Purchaser" shall mean either a Finance Subsidiary or
a financial institution or trust that purchases B Share Fees in connection with
a Permitted B Share True Sale Transaction.
"Xxxxxx" shall mean Xxxxxxxx Management, Inc., formerly known
as Xxxxxx Associates, Inc., a Delaware corporation.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrower" or "Borrowers" shall mean Xxxxxxxx and/or Janus, as
applicable.
"Borrowing" shall mean (a) a group of Loans of a single Type
made by the Lenders (or, in the case of a Competitive Borrowing, by the Lender
or Lenders whose Competitive Bids have been accepted pursuant to Section 2.03)
on a single date and as to which a single Interest Period is in effect or (b) a
Swingline Loan.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capitalized Lease Obligations" of any person shall mean the
obligations of such person under any lease that would be capitalized on a
balance sheet of such person prepared in accordance with GAAP, and the amount of
such obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986.
A "Change in Control" shall be deemed to have occurred if (i)
at any time, less than 75% of the members of the board of directors of Xxxxxxxx
shall be (A) individuals who are members of such board on the date hereof or (B)
individuals whose election, or nomination for election by Xxxxxxxx'x
stockholders, was approved by a vote of at least 75% of the members of the board
then in office who are individuals described in this clause (B) or in the
preceding clause (A) or (ii) at any time, any person or any two or more persons
acting as a partnership, limited partnership, syndicate, or other group for the
purpose of acquiring, holding or disposing of securities of Xxxxxxxx, shall
become, according to public announcement or filing, the "beneficial owner" (as
defined in Rule 13d-3 issued under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of securities of Xxxxxxxx representing 30% or
more (calculated in accordance with such Rule 13d-3) of the combined voting
power of Xxxxxxxx'x then outstanding voting securities.
"Citibank" shall mean Citibank, N.A.
"Code" shall mean the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Standby Loans and to acquire participations in
Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.11, (b)
increased pursuant to Section 2.23 and (c) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 10.04. The
initial amount of each Lender's Commitment is set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Commitment, as applicable. As of the date hereof, the aggregate amount of
the Lenders' Commitments is $300,000,000.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a
notification made by the Borrower pursuant to Section 2.03(d) in the form of
Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid
made by a Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar
Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant
to Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from a Lender or certain
Lenders whose Competitive Bids for such Borrowing have been accepted by a
Borrower under the bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to a
Borrower pursuant to the bidding procedure described in Section 2.03. Each
Competitive Loan shall be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Confidential Memorandum" shall mean the Confidential
Information Memorandum of the Borrowers dated October 23, 2000.
"Consolidated Adjusted Net Worth" shall mean, on any date, the
stockholders' equity of Xxxxxxxx and the Consolidated Subsidiaries on such date,
computed and consolidated in accordance with GAAP, minus "accumulated other
comprehensive income" as shown on Xxxxxxxx'x consolidated balance sheet under
stockholders' equity.
"Consolidated EBITDA" shall mean, for any period, the sum for
such period of (a) Consolidated Net Income, (b) Consolidated Interest Expense,
(c) provision for income taxes for Xxxxxxxx and the Consolidated Subsidiaries,
(d) any amount which in the determination of Consolidated Net Income has been
deducted for depreciation expense or amortization expense and (e) to the extent
not included in
clause (d), writeoffs of goodwill (excess of purchase cost over net assets
acquired), in each case determined in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period,
total interest expense of Xxxxxxxx and the Consolidated Subsidiaries on a
consolidated basis for such period, determined in accordance with GAAP,
including (i) the amortization of debt discounts to the extent included in
interest expense in accordance with GAAP, (ii) the amortization of all fees
(including fees with respect to interest rate protection agreements or other
interest rate hedging arrangements) payable in connection with the incurrence of
Indebtedness to the extent included in interest expense in accordance with GAAP
and (iii) the portion of any rents payable under capital leases allocable to
interest expense in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the net
income of Xxxxxxxx and the Consolidated Subsidiaries on a consolidated basis for
such period but without giving effect to any extraordinary gains and gains from
the sale of assets (other than in the ordinary course of business), determined
in accordance with GAAP.
"Consolidated Net Loss" shall mean, for any period, the net
loss of Xxxxxxxx and the Consolidated Subsidiaries on a consolidated basis for
such period plus writeoffs of goodwill (excess of purchase cost over net assets
acquired), in each case determined in accordance with GAAP.
"Consolidated Net Worth" shall mean, on any date, the
stockholders' equity of Xxxxxxxx and the Consolidated Subsidiaries on such date,
computed and consolidated in accordance with GAAP.
"Consolidated Subsidiary" shall mean each Subsidiary the
financial statements of which shall be required to be consolidated with the
financial statements of Xxxxxxxx in accordance with GAAP.
"Consolidated Total Indebtedness" shall mean at any date all
Indebtedness of Xxxxxxxx and the Consolidated Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with Xxxxxxxx or any Subsidiary, are treated as a
single employer under Section 414(b) or 414(c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, are treated as a
single employer under Section 414(b), (c), (m) or (o) of the Code.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States
of America.
"DST Systems" shall mean DST Systems, Inc., a Delaware
corporation.
"Eligible Assignee" shall mean (a) a Lender, (b) an Affiliate
of a Lender, or (c) any other Person approved by (i) the Agent, (ii) unless an
Event of Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 10.04, the Borrowers and (iii) in the case
of an assignment of all or a portion of a Commitment or any Lender's obligations
in respect of its Swingline Exposure, the Swingline Lender, such approval by the
Agent, the Borrowers and the Swingline Lender, as applicable, not to be
unreasonably withheld or delayed; provided, however, that none of (1) a
Borrower, (2) any Affiliate of a Borrower or (3) an investment manager, an
investment company or any similar entity shall qualify as an Eligible Assignee .
"Environmental Lien" shall mean a Lien in favor of any
governmental entity for (a) any liability under Federal or state environmental
laws or regulations (including, without limitation, RCRA and CERCLA) or (b)
damages arising from costs incurred by such governmental entity in response to a
release of a hazardous or toxic waste, substance or constituent, or other
substance into the environment.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Competitive Borrowing" shall mean a Borrowing
comprised of Eurodollar Competitive Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan
or Eurodollar Standby Loan.
"Eurodollar Standby Borrowing" shall mean a Borrowing
comprised of Eurodollar Standby Loans.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VII.
"Excess Margin Stock" means that portion, if any, of the
Margin Stock owned by Xxxxxxxx and its Subsidiaries that must be excluded from
the restrictions imposed by Section 6.02 and Section 6.04 in order for the value
(determined in accordance with Regulation U) of the Margin Stock subject to such
Sections to account for less than 25% of the aggregate value (as so determined)
of all assets subject to such Sections.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Fee Letter" shall mean the letter agreement dated as of
October 22, 2000 among Xxxxxxxx, the Agent and Xxxxxxx Xxxxx Barney Inc.
"Fees" shall mean the Facility Fee, the Utilization Fee and
the Agent's Fees.
"Finance Subsidiary" shall mean a special purpose subsidiary
engaged solely in purchasing, owning and financing receivables as part of a
Permitted B Share True Sale Transaction.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, vice-president-finance,
treasurer or controller of such corporation.
"Fixed Charge Ratio" shall mean for any period of four
consecutive fiscal quarters ended on the last day of any fiscal quarter, the
ratio of (a) Consolidated EBITDA for such period to (b) the sum of (i)
Consolidated Interest Expense for such period and (ii) required payments during
such period of principal of Indebtedness including the portion of any rents
payable under capital leases allocable to principal in accordance with GAAP.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of
Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal to no more than four decimal places) specified by the Lender making such
Loan in its Competitive Bid.
"GAAP" shall mean U.S. generally accepted accounting
principles, applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of a person means any agreement by which such
person assumes, guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise
becomes liable upon, the obligation of any other person, or agrees to maintain
the net worth or working capital or other financial condition of any other
person or otherwise assures any creditor of such other person against loss,
including, without limitation, any comfort letter, operating agreement or
take-or-pay contract and shall include, without limitation, the contingent
liability of such person in connection with any application for a Letter of
Credit. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" shall mean Xxxxxxxx.
"Indebtedness" of any person shall mean, without duplication,
(a) all obligations of such person for borrowed money, (b) all obligations of
such person evidenced by bonds, debentures, notes, acceptances, equipment trust
certificates or similar instruments, (c) all obligations of such person issued
or assumed as the deferred purchase price of property or services other than
accounts payable arising in the ordinary course of such person's business on
terms customary in the trade, (d) all obligations of such person, whether or not
assumed, secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien or payable
out of the proceeds or production from property owned or acquired by such
person, (e) Capitalized Lease Obligations of such person, (f) all Guarantees by
such person of Indebtedness of others and (g) any other obligations or
securities (other than obligations arising pursuant to the Janus Stock Purchase
Agreement and certain other stock purchase agreements and restriction agreements
requiring Xxxxxxxx to purchase outstanding capital stock of Janus from minority
stockholders of Janus) which such person is directly or indirectly obligated to
repay, redeem, retire, extinguish or repurchase on or prior to the Maturity Date
(i) at a fixed or determinable date, whether by operation of a sinking fund or
otherwise, (ii) at the option of any person other than the issuer thereof or
(iii) upon the occurrence of a condition not solely within the control of the
issuer thereof or obligor thereon, such as a redemption out of future earnings.
The Indebtedness of any person shall include the Indebtedness of any other
entity (including any partnership in which such person is a general partner) to
the extent such person is liable therefor as a result of such person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such person is not liable therefor.
"Interest Payment Date" shall mean, with respect to any Loan,
the last day of the Interest Period applicable thereto and, in the case of a
Eurodollar Loan with an Interest Period of more than three months' duration or a
Fixed Rate Loan with an Interest Period of more than 90 days' duration, each day
that would have been an Interest Payment Date for such Loan had successive
Interest Periods of three months' duration or 90 days duration, as the case may
be, been applicable to such Loan and, in addition, the date of any refinancing
or conversion of such Loan with or to a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2, 3, 6 or, if available, 9 or
12, months thereafter, as the Borrower may elect, (b) as to any ABR Borrowing,
the period commencing on the date of such Borrowing and ending on the date 90
days thereafter or, if earlier, on the Maturity Date or the date of prepayment
of such Borrowing, (c) as to any Fixed Rate Borrowing, the period commencing on
the date of such Borrowing and ending on the date specified in the Competitive
Bids in which the offer to make the Fixed Rate Loans comprising such Borrowing
were extended, which shall not be earlier than seven days after the date of such
Borrowing or later than 360 days after the date of such Borrowing and (d) as to
any Swingline Loan, the period commencing on the date of such Swingline Loan and
ending on the earlier of (x) the Maturity Date and (y) the fifth Business Day
after the date of such Swingline Loan; provided, however, that if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case of
Eurodollar Loans only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.
"Janus" shall mean Janus Capital Corporation, a Colorado
corporation.
"Janus Stock Purchase Agreement" shall mean the Stock Purchase
Agreement dated April 13, 1984 by and among Kansas City Southern Industries,
Inc. and Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxxxxx III,
Xxxxxxx Xxxxxxx and Xxxx X. Xxxxxxxx, as amended prior to the date hereof
including pursuant to the Assignment and Assumption Agreement and Fifth
Amendment to Stock Purchase Agreement dated November 19, 1999 by and among
Kansas City Southern Industries, Inc., Xxxxxxxx Financial Inc. and Xxxxxx X.
Xxxxxx and Xxxxxxx Xxxxxxx.
"Lenders" shall mean (a) the financial institutions listed on
Schedule 2.01 (other than any such financial institution that has ceased to be a
party hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance. Unless the context clearly indicates otherwise, the term "Lenders"
shall include the Swingline Lender.
"Letter of Credit" of a person shall mean a letter of credit
or similar instrument that is issued upon the application of such person or upon
which such person is an account party or for which such person is in any way
liable.
"Leverage Ratio" shall mean, on any date, the ratio of (a)
Consolidated Total Indebtedness as of such date to (b) Consolidated EBITDA for
the period of four consecutive fiscal quarters of Xxxxxxxx ended on such date
(or, if such date is not the last day of a fiscal quarter, on the last day of
the fiscal quarter of Xxxxxxxx most recently ended prior to such date).
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on Page 3750 of the
Telerate Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Agent from time to time for purposes of providing quotations
of interest rates applicable to dollar deposits in the London interbank market)
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowings for such Interest Period shall be the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such average is
not such a multiple) of the rate per annum at which dollar deposits offered by
the principal office of each of the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount substantially
equal to the amount that would be the Reference Banks' respective ratable shares
of such Eurodollar Borrowing if such Eurodollar Borrowing were to be a Standby
Borrowing to be outstanding during such Interest Period and for a period equal
to such Interest Period. If the Telerate Page 3750 (or any successor page) is
unavailable, the LIBO Rate for any Interest Period for each Eurodollar
Competitive Borrowing comprising part of the same Competitive Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.08.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan" shall mean a Competitive Loan or a Standby Loan,
whether made as a Eurodollar Loan, an ABR Loan, a Fixed Rate Loan or a Swingline
Loan, each as permitted hereby.
"Loan Documents" shall mean this Agreement and the Fee Letter
(and the commitment letter executed in connection therewith).
"Xxxxx Property" shall mean a parcel of land consisting of
approximately 35.4 acres located at the former Xxxxx Air Force Base in Denver,
Colorado. The Xxxxx Property will be owned by Janus Properties, LLC, a
wholly-owned subsidiary of Janus.
"Margin" shall mean, as to any Eurodollar Competitive Loan,
the margin (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) to be added to or subtracted from the LIBO
Rate in order to determine the interest rate applicable to such Loan, as
specified in the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, liabilities, operations, condition (financial or
otherwise) or prospects of either Borrower and its Related Subsidiaries taken as
a whole, (b) the ability of either Borrower to perform any of its obligations
under any
Loan Document or to complete the Transactions in any material respect or (c) the
rights of or benefits available to the Lenders under any Loan Document.
"Maturity Date" shall mean December 7, 2005.
"Multiemployer Plan" shall mean a Plan that is a
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA as to which
Xxxxxxxx or any member of the Controlled Group may have any liability.
"Multiple Employer Plan" shall mean a Plan that is a
single-employer plan which has two or more contributing sponsors at least two of
whom are not under common control or who made contributions under such Plan
during the preceding five years.
"Xxxxxx" shall mean Xxxxxx Money Managers plc, an English
corporation.
"2000 Credit Agreement" shall mean the 364-Day Competitive
Advance and Revolving Credit Facility Agreement dated as of January 11, 2000
among Xxxxxxxx, the lenders party thereto, The Chase Manhattan Bank, as
administrative agent, Bank of America N.A., as documentation agent, and Fleet
National Bank, as syndication agent, as amended, supplemented or otherwise
modified from time to time.
"Obligations" shall mean all unpaid principal of and accrued
and unpaid interest on the Loans, all accrued and unpaid Fees and all other
obligations of the Borrowers to the Lenders or to any Lender or the Agent
arising under the Loan Documents.
"PBGC" shall mean the Pension Benefit Guarantee Corporation
referred to and defined in ERISA.
"Permitted B Share Recourse Financing Transaction" shall mean
any pledge by Janus of the B Share Fees to third parties in order to secure
Indebtedness extended by such third parties; provided that the Agent shall be
satisfied with the structure and documentation for such transaction and that the
terms of such transaction, including the advance rate and any termination
events, shall be consistent with those prevailing in the market at the time for
similar transactions.
"Permitted B Share Transactions" shall mean a Permitted B
Share True Sale Transaction or a Permitted B Share Recourse Financing
Transaction.
"Permitted B Share True Sale Transaction" shall mean any sale
by Janus of the B Share Fees to a B Share Purchaser in a true sale transaction
without any recourse based upon the collectibility of the B Share Fees sold and
the sale or pledge of such B Share Fees (or an interest therein) by such B Share
Purchaser, in each case without any Guarantee by, or other recourse to, or
credit support by, Janus or any Related Subsidiary (other than to such B Share
Purchaser, if it is a Finance Subsidiary) or recourse to any assets of Janus or
any of its Related Subsidiaries; provided that the Agent shall be satisfied with
the structure and documentation for such transaction and that the terms of such
transaction, including the price at which B Share Fees are sold to such B Share
Purchaser and any termination events, shall be consistent with those prevailing
in the market at the time for similar transactions.
"Permitted Subordinated Debt" means any unsecured Indebtedness
of Xxxxxxxx (a) the principal of which is not by its terms required to be
repaid, prepaid, redeemed, repurchased or defeased, in whole or in part, at the
option of any holder thereof or on any date prior to the Maturity Date, (b) that
is not guaranteed by any Subsidiary, (c) that is fully subordinated to the
Obligations of Xxxxxxxx in the event of any bankruptcy, reorganization or
insolvency proceeding with respect to Xxxxxxxx, (d) that provides that no
payments of interest will be made during the continuance of any Default in the
payment of the principal of or interest on the Obligations, (e) that provides on
customary terms that payments of interest may be suspended for a period of 180
days during the continuance of non-payment Defaults upon notice given by the
Agent on behalf of the Lenders and (f) the subordination provisions of which,
insofar as they relate to the Obligations, are otherwise customary for publicly
offered subordinated debt securities.
"Person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership, limited liability
company or government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan that is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code as to which Xxxxxxxx or any member of the Controlled
Group may have any liability.
"Pro Rata Percentage" of any Lender at any time shall mean the
percentage of the Total Commitment represented by such Lender's Commitment. In
the event that the Total Commitment shall have expired or been terminated, the
Pro Rata Percentage with respect to any Lender shall be such Lender's Pro Rata
Percentage most recently in effect prior to such expiration or termination of
the Total Commitment, giving effect to any subsequent assignments pursuant to
Section 10.04.
"Projections" shall have the meaning assigned to such term in
Section 3.05(b).
"RCRA" shall mean the Resources Conservation and Recovery Act,
as the same may be amended from time to time.
"Reference Banks" shall mean Citibank, N.A., The Chase
Manhattan Bank and Xxxxx Fargo Bank West, N.A.
"Register" shall have the meaning given such term in Section
10.04(d).
"Regulation D" shall mean Regulation D of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Related Subsidiaries" shall mean (a) with respect to
Xxxxxxxx, each of its subsidiaries, other than Janus and each of Janus'
subsidiaries and (b) with respect to Janus, each of its subsidiaries.
"Reportable Event" shall mean any reportable event as defined
in Section 4043 of ERISA and the regulations issued under such Section with
respect to a Plan (other than a Multiemployer Plan), excluding, however, such
events as to which the PBGC by regulation or by technical update waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event; provided that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall be
a reportable event regardless of the issuance of any waiver in accordance with
Section 412(d) of the Code.
"Required Lenders" shall mean, at any time, Lenders in the
aggregate holding more than 50% of the Total Commitment or, for purposes of
acceleration pursuant to clause (ii) of Article VII or if the Total Commitment
has been terminated, Lenders in the aggregate representing more than 50% of the
sum of the Revolving Credit Exposure and the principal amount of the outstanding
Competitive Loans.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any other officer
or similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the aggregate principal amount at such time of all
outstanding Standby Loans of such Lender plus the aggregate amount at such time
of such Lender's Swingline Exposure.
"Sale and Leaseback Transaction" shall have the meaning
assigned to such term in Section 6.03.
"Standby Borrowing" shall mean a borrowing consisting of
simultaneous Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant
to Section 2.04 in the form of Exhibit A-5.
"Standby Loans" shall mean the revolving loans made by the
Lenders to a Borrower pursuant to Section 2.04. Each Standby Loan shall be a
Eurodollar Standby Loan or an ABR Loan.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority to which
the Agent is subject (a) with respect to the Base CD Rate (as such term is used
in the definition of "Alternate Base Rate"), for new negotiable nonpersonal time
deposits in dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the Adjusted LIBO Rate, for Eurocurrency
Liabilities (as defined in Regulation D). Such reserve percentages shall include
any imposed pursuant to Regulation D. Eurodollar Loans shall be deemed to
constitute Eurocurrency Liabilities and to be subject to such reserve
requirements without benefits of or credit for proration, exemptions or offsets.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"Xxxxxxxx" shall mean Xxxxxxxx Financial Inc., a Delaware
corporation.
"subsidiary" shall mean, with respect to any person, any
corporation, partnership, limited liability company, association or other
business entity of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or
more than 50% of the general partnership interests or limited liability company
interests or other ownership interests are, at the time any determination is
being made, owned, controlled or held.
"Subsidiary" shall mean any subsidiary of Xxxxxxxx.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall equal its Pro Rata Percentage of the
aggregate Swingline Exposure at such time.
"Swingline Lender" means Citibank, in its capacity as lender
of Swingline Loans hereunder, or another Lender that has agreed to provide
Swingline Loans hereunder; provided that Janus shall have delivered to the Agent
a written notice that it has elected to replace Citibank as Swingline Lender (it
being understood that there shall be only one Swingline Lender hereunder at any
time).
"Swingline Loan" means a Loan made to Janus pursuant to
Section 2.22.
"364-Day Agreement" shall mean the 364-Day Competitive Advance
and Revolving Credit Facility Agreement dated as of the date hereof among the
Borrowers, the lenders party thereto and the Agent.
"Total Commitment" shall mean at any time the aggregate amount
of the Lenders' Commitments under this Agreement, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the Adjusted LIBO Rate, the LIBO Rate, the Alternate Base Rate and the
Fixed Rate.
"Unfunded Liabilities" shall mean, on any date of
determination, (a) in the case of Multiemployer Plans and Multiple Employer
Plans, the liability of Xxxxxxxx and the Subsidiaries if they were to incur a
complete withdrawal from each such plan and (b) in the case of all other Plans,
all "unfunded benefit liabilities" as defined in Section 4001(a)(18) of ERISA.
"Utilization Fee" shall have the meaning assigned to such term
in Section 2.06(b).
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided,
however, that, for purposes of determining compliance with any covenant set
forth in Article VI, such terms shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
application used in preparing Xxxxxxxx'x audited financial statements referred
to in Section 3.05. In the event that any change in GAAP materially affects any
provision of this Agreement, the parties hereto agree that, at the request of
the Borrowers or the Required Lenders, they shall negotiate in good faith in
order to amend the affected provisions in such a way as will restore the parties
to their respective positions prior to such change, and, following any such
request, until such amendment becomes effective, the Borrowers' compliance with
such provisions shall be determined on the basis of GAAP as in effect
immediately before such change in GAAP became effective.
ARTICLE II. THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, to make Standby Loans to either
Borrower, at any time and from time to time on and after the date hereof and
until the earlier of the Maturity Date and the termination of the Commitment of
such Lender, in an aggregate principal amount at any time outstanding that will
not result in such Lender's Revolving Credit Exposure exceeding its Commitment,
subject, however, to the conditions that at no time shall (a) the sum of (i) the
total Revolving Credit Exposures plus (ii) the outstanding aggregate principal
amount of all Competitive Loans exceed the Total Commitment, (b) the outstanding
aggregate principal amount of all Loans made by the Lenders to Xxxxxxxx exceed
$200,000,000 or (c) the outstanding aggregate principal amount of all Loans made
by the Lenders to Janus exceed $100,000,000.
Within the foregoing limits, each of the Borrowers may borrow,
pay or prepay and reborrow hereunder, on and after the date hereof and prior to
the Maturity Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made as
part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their Commitments; provided, however, that the failure of any
Lender to make any Standby Loan shall not in itself relieve any other Lender of
its obligation to lend hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to make any Loan
required to be made by such other Lender). Each Competitive Loan shall be made
in accordance with the procedures set forth in Section 2.03. The Standby Loans
or Competitive Loans or Swingline Loans comprising any Borrowing shall be (i) in
the case of Competitive Loans, in an aggregate principal amount which is an
integral multiple of $1,000,000 and not less than $10,000,000, (ii) in the case
of Standby Loans, in an aggregate principal amount which is an integral multiple
of $1,000,000 and not less than $5,000,000 (or an aggregate principal amount
equal to the remaining balance of the available Commitments) and (iii) in the
case of Swingline Loans, in an aggregate principal amount which is an integral
multiple of $1,000,000 and not less than $5,000,000.
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Standby Borrowing
shall be comprised entirely of Eurodollar Standby Loans or ABR Loans, as the
relevant Borrower may request pursuant to Section 2.03 or 2.04, as applicable,
and each Swingline Loan shall be comprised entirely of ABR Loans unless
otherwise agreed by Janus and the Swingline Lender pursuant to Section 2.08(d).
Each Lender may at its option make any Eurodollar Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of the relevant
Borrower to repay such Loan in accordance with the terms of this Agreement.
Borrowings of more than one Type may be outstanding at the same time; provided,
however, that neither Borrower shall be entitled to request any Borrowing which,
if made, would result in an aggregate of more than eight separate Standby
Loans of any Lender being outstanding hereunder at any one time. For purposes
of the foregoing, Loans having
different Interest Periods, regardless of whether they commence on the same
date, shall be considered separate Loans.
(c) Subject to Section 2.05, each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Agent in New York, New York, not later than
12:00 noon, New York City time, and the Agent shall by 3:00 p.m., New York City
time, credit the amounts so received to the general deposit account of the
relevant Borrower with the Agent or, if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met, return
the amounts so received to the respective Lenders; provided that Swingline Loans
shall be made as provided in Section 2.22. Competitive Loans shall be made by
the Lender or Lenders whose Competitive Bids therefor are accepted pursuant to
Section 2.03 in the amounts so accepted and Standby Loans shall be made by the
Lenders pro rata in accordance with Section 2.16. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments and Competitive Bids of
the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required. Unless the Agent shall have received
notice from a Lender prior to the date of any Borrowing that such Lender will
not make available to the Agent such Lender's portion of such Borrowing, the
Agent may assume that such Lender has made such portion available to the Agent
on the date of such Borrowing in accordance with this paragraph (c) and the
Agent may, in reliance upon such assumption, make available to the relevant
Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have made such portion available to the Agent, such Lender and
the relevant Borrower severally agree to repay to the Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date such amount is made available to such Borrower until the date such amount
is repaid to the Agent at (i) in the case of such Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Effective Rate. If such Lender shall
repay to the Agent such corresponding amount, such amount shall constitute such
Lender's Loan as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement,
neither Borrower shall be entitled to request any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity Date.
SECTION 2.03. Competitive Bid Procedure. (a) In order to
request Competitive Bids, the relevant Borrower shall hand deliver, telex or
telecopy to the Agent a duly completed Competitive Bid Request in the form of
Exhibit A-1 hereto, to be received by the Agent (i) in the case of a Eurodollar
Competitive Borrowing, not later than 10:00 a.m., New York City time, four
Business Days before a proposed Competitive Borrowing and (ii) in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before a proposed Competitive Borrowing. No ABR Loan shall be
requested in, or made pursuant to, a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit A-1 may be
rejected in the Agent's sole discretion, and the Agent shall promptly notify the
relevant Borrower of such rejection by telex or telecopier. Such request shall
in each case refer to this Agreement and specify (x) whether the Borrowing then
being requested is to be a Eurodollar Borrowing or a Fixed Rate Borrowing, (y)
the date of such Borrowing (which shall be a Business Day) and the aggregate
principal amount thereof which shall be in a minimum principal amount of
$10,000,000 and in an integral multiple of $1,000,000, and (z) the Interest
Period with respect thereto (which may not end after the Maturity Date).
Promptly after its receipt of a Competitive Bid Request that is not rejected as
aforesaid, the Agent shall invite by telecopier (in the form set forth in
Exhibit A-2 hereto) the Lenders to bid, on the terms and conditions of this
Agreement, to make Competitive Loans pursuant to the Competitive Bid Request.
Competitive Borrowings may be made in an aggregate principal amount outstanding
at any time not greater than the Total Commitment minus the Revolving Credit
Exposures at such time. The portion of the Revolving Credit Exposure
attributable to Xxxxxxxx at any time plus the aggregate principal amount of
Competitive Loans to Xxxxxxxx outstanding at such time shall not exceed
$200,000,000. The portion of the Revolving Credit Exposure attributable to Janus
at any time plus the aggregate principal amount of Competitive Loans to Janus
outstanding at such time shall not exceed $100,000,000.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the relevant Borrower responsive to a Competitive Bid
Request. Each Competitive Bid by a Lender must be received by the Agent via
telecopier, in the form of Exhibit A-3 hereto, (i) in the case of a Eurodollar
Competitive Borrowing, not later than 9:30 a.m.,
New York City time, three Business Days before a proposed Competitive Borrowing
and (ii) in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New
York City time, on the day of a proposed Competitive Borrowing. Multiple bids
will be accepted by the Agent. Competitive Bids that do not conform
substantially to the format of Exhibit A-3 may be rejected by the Agent after
conferring with, and upon the instruction of, the relevant Borrower, and the
Agent shall notify the Lender making such nonconforming bid of such rejection as
soon as practicable. Each Competitive Bid shall refer to this Agreement and
specify (x) the principal amount (which shall be in a minimum principal amount
of $10,000,000 and in an integral multiple of $1,000,000 and which may equal the
entire principal amount of the Competitive Borrowing requested by the relevant
Borrower) of the Competitive Loan or Loans that the Lender is willing to make to
such Borrower, (y) the Competitive Bid Rate or Rates at which the Lender is
prepared to make the Competitive Loan or Loans and (z) the Interest Period and
the last day thereof. If any Lender shall elect not to make a Competitive Bid,
such Lender shall so notify the Agent via telecopier (I) in the case of
Eurodollar Competitive Loans, not later than 9:30 a.m., New York City time,
three Business Days before a proposed Competitive Borrowing, and (II) in the
case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on the
day of a proposed Competitive Borrowing; provided, however, that failure by any
Lender to give such notice shall not cause such Lender to be obligated to make
any Competitive Loan as part of such Competitive Borrowing. A Competitive Bid
submitted by a Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Agent shall promptly notify the relevant Borrower by
telecopier of all the Competitive Bids made, the Competitive Bid Rate and the
principal amount of each Competitive Loan in respect of which a Competitive Bid
was made and the identity of the Lender that made each bid. The Agent shall send
a copy of all Competitive Bids to such Borrower for its records as soon as
practicable after completion of the bidding process set forth in this Section
2.03.
(d) The relevant Borrower may in its sole and absolute
discretion, subject only to the provisions of this paragraph (d), accept or
reject any Competitive Bid referred to in paragraph (c) above. The relevant
Borrower shall notify the Agent by telephone, confirmed by telecopier in the
form of a Competitive Bid Accept/Reject Letter in the form of Exhibit A-4
hereto, whether and to what extent it has decided to accept or reject any of or
all the bids referred to in paragraph (c) above, (x) in the case of a Eurodollar
Competitive Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before a proposed Competitive Borrowing, and (y) in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the day
of a proposed Competitive Borrowing; provided, however, that (i) the failure by
such Borrower to give such notice shall be deemed to be a rejection of all the
bids referred to in paragraph (c) above, (ii) such Borrower shall not accept a
bid made at a particular Competitive Bid Rate if such Borrower has decided to
reject a bid made at a lower Competitive Bid Rate, (iii) the aggregate amount of
the Competitive Bids accepted by such Borrower shall not exceed the principal
amount specified in the Competitive Bid Request and shall be in a minimum
principal amount of $10,000,000, (iv) if such Borrower shall accept a bid or
bids made at a particular Competitive Bid Rate but the amount of such bid or
bids shall cause the total amount of bids to be accepted by such Borrower to
exceed the amount specified in the Competitive Bid Request, then such Borrower
shall accept a portion of such bid or bids in an amount equal to the amount
specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such bid at such Competitive
Bid Rate, and (v) except pursuant to clause (iv) above, no bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $10,000,000 and an integral multiple of $1,000,000; provided further,
however, that if a Competitive Loan must be in an amount less than $10,000,000
because of the provisions of clause (iv) above, such Competitive Loan may be for
a minimum of $1,000,000 or any integral multiple thereof, and in calculating the
pro rata allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner which shall be in the discretion of
such Borrower. A notice given by the relevant Borrower pursuant to this
paragraph (d) shall be irrevocable.
(e) The Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopy sent by the Agent, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan in respect of which its bid has
been accepted.
(f) A Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request.
(g) If the Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such bid directly to the relevant
Borrower one quarter of an hour earlier than the latest time at which the other
Lenders are required to submit their bids to the Agent pursuant to paragraph (b)
above.
(h) All Notices required by this Section 2.03 shall be given
in accordance with Section 10.01.
SECTION 2.04. Standby Borrowing Procedure. In order to request
a Standby Borrowing, the relevant Borrower shall hand deliver or telecopy to the
Agent in the form of Exhibit A-5 (a) in the case of a Eurodollar Standby
Borrowing, not later than 10:30 a.m., New York City time, three Business Days
before a proposed borrowing and (b) in the case of an ABR Borrowing, not later
than 10:30 a.m., New York City time, on the day of a proposed borrowing. No
Fixed Rate Loan shall be requested or made pursuant to a Standby Borrowing
Request. Such notice shall be irrevocable and shall in each case specify (i)
whether the Borrowing then being requested is to be a Eurodollar Standby
Borrowing or an ABR Borrowing; (ii) the date of such Standby Borrowing (which
shall be a Business Day) and the amount thereof; and (iii) if such Borrowing is
to be a Eurodollar Standby Borrowing, the Interest Period with respect thereto.
If no election as to the Type of Standby Borrowing is specified in any such
notice, then the requested Standby Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Standby Borrowing is specified in
any such notice, then the relevant Borrower shall be deemed to have selected an
Interest Period of one month's duration. If the relevant Borrower shall not have
given notice in accordance with this Section 2.04 of its election to refinance a
Standby Borrowing prior to the end of the Interest Period in effect for such
Borrowing, then such Borrower shall (unless such Borrowing is repaid at the end
of such Interest Period) be deemed to have given notice of an election to
refinance such Borrowing with an ABR Borrowing. The Agent shall promptly advise
the Lenders of any notice given pursuant to this Section 2.04 and of each
Lender's portion of the requested Borrowing.
SECTION 2.05. Interest Elections. (a) Each Standby Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Standby Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the relevant
Borrower may elect to convert such Borrowing to a Borrowing of a different Type
or to continue such Borrowing and, in the case of a Eurodollar Standby
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The relevant Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Competitive Borrowings or Swingline
Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the relevant
Borrower shall notify the Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.04 if such Borrower were
requesting a Standby Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Agent of a written Interest Election Request in a
form approved by the Agent and signed by the relevant Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is to be a Eurodollar
Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the relevant Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely
Interest Election Request with respect to a Eurodollar Standby Borrowing prior
to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Agent, at the request of the Required Lenders, so notifies the relevant
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Standby Borrowing may be converted to or continued as a Eurodollar Borrowing and
(ii) unless repaid, each Eurodollar Standby Borrowing shall be converted to an
ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.06. Fees. (a) Xxxxxxxx agrees to pay to each Lender,
through the Agent, a facility fee (a "Facility Fee") at a rate per annum equal
to the Applicable Percentage from time to time in effect on the amount of the
Commitment of such Lender, whether used or unused, during the period commencing
with the date hereof to but excluding the date on which such Commitment
terminates; provided that if such Lender continues to have any Revolving Credit
Exposure after its Commitment terminates, then such Facility Fee shall continue
to accrue on the daily amount of such Lender's Revolving Credit Exposure from
and including the date on which its Commitment terminates to but excluding the
date on which such Lender ceases to have any Revolving Credit Exposure. Accrued
Facility Fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any Facility Fees accruing after the date on which the Commitments
terminate shall be payable on demand. All Facility Fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) For any day on which the outstanding principal amount of
Loans and the "Loans" under and as defined in the 364-Day Agreement shall be
greater than 50% of the sum of the total Commitments under this Agreement and
the total "Commitments" under and as defined in the 364-Day Agreement, Xxxxxxxx
shall pay to the Agent for the account of each Lender a utilization fee (a
"Utilization Fee") equal to the Applicable Percentage on the aggregate amount of
each Lender's outstanding Loans to the Borrowers on such day. The accrued
Utilization Fees, if any, shall be payable in arrears on the last day of each
March, June, September and December and on the date or dates on which the
Commitments terminate and any outstanding Loans are repaid. All Utilization Fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(c) Xxxxxxxx agrees to pay the Agent, for its own account, the
fees (the "Agent's Fees") at the times and in the amounts agreed by Xxxxxxxx and
the Agent in the Fee Letter.
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Agent for distribution, if and as appropriate, among the
Lenders. Once paid, none of the Fees shall be refundable under any circumstances
absent manifest error.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay (i) on the Maturity Date to the
Agent for the account of each Lender the then unpaid principal amount of each
Standby Loan made to such Borrower and (ii) on the last day of the Interest
Period applicable thereto to the Agent for the applicable Lender(s) the then
unpaid principal amount of each Competitive Loan made to such Borrower. Janus
hereby unconditionally promises to pay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of the Maturity Date and
the fifth Business Day after such Swingline Loan is made; provided that on each
date that a Standby Borrowing or Competitive Borrowing is made to Janus, Janus
shall repay all Swingline Loans then outstanding.
(b) The outstanding principal balance of each Competitive
Loan, each Standby Loan and each Swingline Loan shall be payable on the last day
of the Interest Period applicable to such Loan and on
the Maturity Date. Each Competitive Loan, each Standby Loan and each Swingline
Loan shall bear interest from the date thereof on the outstanding principal
balance thereof as set forth in Section 2.08. Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness to such Lender resulting from each Loan made by such Lender from
time to time, including the amounts of principal and interest payable and paid
such Lender from time to time under this Agreement. The Agent shall maintain
accounts in which it will record (i) the amount of each Loan made hereunder, the
Type of each Loan made and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable
from each Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Agent hereunder from each Borrower and each Lender's share
thereof. The entries made in the accounts maintained pursuant to this Section
2.07 shall, to the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations therein recorded; provided,
however, that the failure of any Lender or the Agent to maintain such accounts
or any error therein shall not in any manner (i) affect the obligations of
either Borrower to repay the Loans in accordance with their terms or (ii) cause
either Borrowers' obligations to be greater than they would have been absent
such failure or error.
(c) Any Lender may request that Loans made by it to a Borrower
be evidenced by a promissory note of such Borrower. In such event, such Borrower
shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and
its registered assigns) and in a form approved by the Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.08. Interest on Loans. (a) Subject to the provisions
of Section 2.09, the Loans comprising each Eurodollar Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum equal to (i) in the case of each Eurodollar
Standby Loan, the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Percentage, and (ii) in the case of each
Eurodollar Competitive Loan, the LIBO Rate for the Interest Period in effect for
such Borrowing plus the Margin offered by the Lender making such Loan and
accepted by the relevant Borrower pursuant to Section 2.03. Interest on each
Eurodollar Borrowing shall be payable on each applicable Interest Payment Date.
Each Reference Bank agrees to furnish to the Agent timely information for the
purpose of determining the LIBO Rate and the Adjusted LIBO Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the
Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Agent shall promptly advise the relevant Borrower
and each Lender, as appropriate, of such determination.
(b) Subject to the provisions of Section 2.09, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be,) at a rate per annum equal to the Alternate Base Rate. Interest on each ABR
Borrowing shall be payable on each applicable Interest Payment Date. The
Alternate Base Rate shall be determined by the Agent, and such determination
shall be conclusive absent manifest error. The Agent shall promptly advise the
relevant Borrower and each Lender of such determination.
(c) Subject to the provisions of Section 2.09, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the relevant
Borrower pursuant to Section 2.03. Interest on each Fixed Rate Loan shall be
payable on the Interest Payment Dates applicable to such Loan except as
otherwise provided in this Agreement.
(d) Subject to the provisions of Section 2.09, each Swingline
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be) at such rate per
annum as shall be agreed to in writing by Janus and the Swingline Lender with
respect to such Swingline Loan or, if no such agreement shall be made, at a rate
per annum equal to the Alternate Base Rate. Interest on each Swingline Loan
shall be payable on each applicable Interest Payment Date.
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each outstanding Eurodollar Borrowing will automatically,
on the last day of the then existing Interest Period
therefor, convert into an ABR Borrowing if all such Events of Default shall not
have been cured by such time and (ii) the obligation of the Lenders to make, or
to convert into, Eurodollar Borrowings shall be suspended.
SECTION 2.09. Default Interest. Upon the occurrence and during
the continuance of an Event of Default, each Borrower shall pay interest on (a)
the unpaid principal amount of each of its Standby Borrowings and, in the case
of Janus, each Swingline Borrowing, payable in arrears on the dates referred to
in Section 2.07(b), at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal at all times to 2% per
annum above the rate per annum required to be paid on such Standby Borrowings
and such Swingline Borrowings pursuant to Section 2.08(a), (b) or (d), as
applicable, and (b) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum (computed on the basis of the actual number of days elapsed
over a year of 360 days) equal at all times to 2% per annum above the rate per
annum required to be paid on ABR Borrowings pursuant to Section 2.08(b).
SECTION 2.10. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Agent shall have determined
that dollar deposits in the principal amounts of the Eurodollar Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, the Agent shall,
as soon as practicable thereafter, give written or telecopy notice of such
determination to the Borrowers and the Lenders. In the event of any such
determination, until the Agent shall have advised the Borrowers and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any
request by either Borrower for a Eurodollar Competitive Borrowing pursuant to
Section 2.03 shall be of no force and effect and shall be denied by the Agent
and (ii) any request by either Borrower for a Eurodollar Standby Borrowing
pursuant to Section 2.04 shall be deemed to be a request for an ABR Borrowing.
In the event of any such determination, the Lenders shall negotiate with the
Borrowers, at their request, as to the interest rate which the Loans comprising
such an ABR Borrowing shall bear; provided that such Loans shall bear interest
as provided in Section 2.08(b) pending the execution by the Borrowers and the
Lenders of a written agreement providing for a different interest rate. Each
determination by the Agent hereunder shall be conclusive absent manifest error.
SECTION 2.11. Termination and Reduction of Commitments. (a)
Upon at least three Business Days' prior irrevocable written or telecopy notice
to the Agent, the Borrowers, acting jointly, may at any time in whole
permanently terminate, or from time to time in part permanently reduce, without
penalty but subject to Section 2.15, the Total Commitment; provided, however,
that (i) each partial reduction of the Total Commitment shall be in an integral
multiple of $1,000,000 and in a minimum principal amount of $10,000,000 and (ii)
no such termination or reduction shall be made if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.12, the sum of
the Revolving Credit Exposures plus the aggregate outstanding principal amount
of the Competitive Loans would exceed the Total Commitment.
(b) Each reduction in the Total Commitment hereunder shall be
made (i) ratably among the Lenders in accordance with their respective
Commitments and (ii) ratably between the Borrowers in accordance with the
percentage of the Total Commitment available to each Borrower on the date
hereof. Xxxxxxxx shall pay to the Agent for the account of the Lenders, on the
date of each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced accrued through the date of such
termination or reduction.
(c) Unless previously terminated, the Commitments shall
terminate on the Maturity Date.
SECTION 2.12. Prepayment. (a) Either Borrower shall have the
right at any time and from time to time to prepay, without penalty but subject
to Section 2.15, any Standby Borrowing, in whole or in part, upon giving written
or telecopy notice (or telephone notice promptly confirmed by written or
telecopy notice) to the Agent: (i) before 10:00 a.m., New York City time, two
Business Days prior to prepayment, in the case of Eurodollar Loans, and (ii)
before 10:00 a.m., New York City time, on the
Business Day of prepayment, in the case of ABR Loans; provided, however, that
each partial prepayment shall be in an amount which is an integral multiple of
$1,000,000 and not less than $5,000,000 or, if less, the aggregate principal
amount of such Standby Borrowing. Neither Borrower shall have the right to
prepay any Competitive Borrowing.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.11, each Borrower shall pay or prepay so much
of its respective Standby Borrowings as shall be necessary in order that the
aggregate principal amount of the Competitive Loans and the total Revolving
Credit Exposures will not exceed the Total Commitment after giving effect to
such termination or reduction. In the event of any termination of all of the
Commitments, the Borrowers shall repay or prepay all of their respective
outstanding Standby Loans and Janus shall repay or prepay all outstanding
Swingline Loans on the date of such termination.
(c) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the relevant Borrower to prepay
such Borrowing (or portion thereof) by the amount stated therein on the date
stated therein. All prepayments under this Section 2.12 shall be subject to
Section 2.15 but shall otherwise be without premium or penalty. All prepayments
under this Section 2.12 shall be accompanied by accrued interest on the
principal amount being prepaid to the date of payment.
SECTION 2.13. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender of the
principal of or interest on any Eurodollar Loan or Fixed Rate Loan made by such
Lender or any Fees or other amounts payable hereunder (other than changes in
respect of taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal or applicable lending office
or by any political subdivision or taxing authority therein), or shall impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of or credit extended by
such Lender (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate), or shall impose on such Lender or the London interbank
market any other condition affecting this Agreement or any Eurodollar Loan or
Fixed Rate Loan made by such Lender, and the result of any of the foregoing
shall be to increase the direct cost to such Lender of making or maintaining any
Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum received
or receivable by such Lender hereunder or (whether of principal, interest or
otherwise) by an amount reasonably deemed by such Lender to be material, then
the relevant Borrower will pay to such Lender upon demand such additional amount
or amounts as will compensate such Lender for such additional costs incurred or
reduction suffered. Notwithstanding the foregoing, no Lender shall be entitled
to request compensation under this paragraph with respect to any Competitive
Loan if it shall have been aware of the change giving rise to such request at
the time of submission of the Competitive Bid pursuant to which such Competitive
Loan shall have been made.
(b) If any Lender shall have determined that the applicability
of any law, rule, regulation or guideline adopted pursuant to or arising out of
the July 1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital Measurement
and Capital Standards", or the adoption after the date hereof of any other law,
rule, regulation or guideline regarding capital adequacy, or any change in any
of the foregoing or in the interpretation or administration of any of the
foregoing by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or any lending office of such Lender) or any Lender's holding company
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's capital
or on the capital of such Lender's holding company, if any, as a consequence of
this Agreement or the Loans made by such Lender pursuant hereto to a level below
that which such Lender or such Lender's holding company could have achieved but
for such applicability, adoption, change or compliance (taking into
consideration such Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time the relevant Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c) Failure on the part of any Lender to demand compensation
for any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not constitute a
waiver of such Lender's right to demand compensation with respect to such period
or any other period. The protection of this Section shall be available to each
Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any
other provision herein, if any change in any law or regulation or in the
interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrowers and to the Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made
by such Lender hereunder, whereupon such Lender shall not submit a
Competitive Bid in response to a request for Eurodollar Competitive
Loans and any request by either Borrower for a Eurodollar Standby
Borrowing shall, as to such Lender only, be deemed a request for an ABR
Loan unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it
be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date
of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, and
(x) all payments and prepayments of principal which would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such Lender
or the converted Eurodollar Loans of such Lender shall instead be applied to
repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans and (y) such Lender shall negotiate with
the Borrowers, at their request, as to the interest rate which such ABR Loans
shall bear; provided that such Loans shall bear interest as provided in Section
2.08(b) pending the execution by the Borrowers and such Lender of a written
agreement providing for a different interest rate.
(b) For purposes of this Section 2.14, a notice to the
relevant Borrower by any Lender shall be effective as to each Eurodollar Loan,
if lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the relevant Borrower.
SECTION 2.15. Indemnity. Each Borrower shall indemnify each
Lender against any loss or expense which such Lender may sustain or incur as a
consequence of (a) any failure by such Borrower to fulfill on the date of any
borrowing hereunder the applicable conditions set forth in Article IV, (b) any
failure by such Borrower to borrow or to refinance or continue any Loan of such
Borrower hereunder, for any reason other than a default by such Lender, after
irrevocable notice of such borrowing, refinancing or continuation has been given
pursuant to Section 2.03 or 2.04, (c) any payment, prepayment or conversion of a
Eurodollar Loan or Fixed Rate Loan required by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day of
the Interest Period applicable thereto, (d) any default in payment or prepayment
by such Borrower of the principal amount of any Loan made to such Borrower or
any part thereof or interest accrued thereon, as and when due and payable (at
the due date thereof, whether by scheduled maturity, acceleration, irrevocable
notice of prepayment or otherwise) or (e) the occurrence of any Event of Default
caused by such Borrower, including, in each such case, any loss or reasonable
expense sustained or incurred or to be sustained or incurred in liquidating or
employing deposits from third parties acquired to effect or maintain such Loan
or any part thereof as a Eurodollar Loan or Fixed Rate Loan. Such loss or
reasonable expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted or not borrowed (assumed to be the
Adjusted LIBO Rate or, in the case of a Fixed Rate Loan, the fixed rate of
interest applicable thereto) for the period from the date of such payment,
prepayment or failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for such Loan
which would have commenced on the date of such failure) over (ii) the amount of
interest (as reasonably determined by such Lender) that would be realized by
such Lender in reemploying the funds so paid, prepaid or not borrowed for such
period or Interest Period, as the case may be.
SECTION 2.16. Pro Rata Treatment. Except as required under
Section 2.14, each Standby Borrowing, each payment or prepayment of principal of
any Standby Borrowing, each payment of interest on the Standby Loans, each
payment of the Facility Fees, each payment of the Utilization Fees insofar as it
relates to Standby Loans, each reduction of the Commitments and each refinancing
of any Borrowing with a Standby Borrowing of any Type, shall be allocated pro
rata among the Lenders in accordance with their respective Commitments (or, if
such Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Standby Loans). Each payment
of principal of any Competitive Borrowing and each payment of the Utilization
Fees insofar as it relates to Competitive Loans shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective principal amounts of their outstanding Competitive Loans comprising
such Borrowing. Each payment of interest on any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective amounts of accrued and unpaid interest on their
outstanding Competitive Loans comprising such Borrowing. For purposes of
determining the available Commitments of the Lenders at any time, each
outstanding Competitive Borrowing and each outstanding Swingline Loan shall be
deemed to have utilized the Commitments of the Lenders (including those Lenders
which shall not have made Loans as part of such Competitive Borrowing and those
Lenders that shall not have made Swingline Loans) pro rata in accordance with
such respective Commitments. Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Agent may, in its discretion,
round each Lender's percentage of such Borrowing to the next higher or lower
whole dollar amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against either Borrower, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Standby Loan or Loans or participations in Swingline Loans as a result of which
the unpaid principal portion of the Standby Loans or participations in Swingline
Loans shall be proportionately less than the unpaid principal portion of the
Standby Loans or participations in Swingline Loans of any other Lender, it shall
be deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a
participation in the Standby Loans and participations in Swingline Loans of such
other Lender, so that the aggregate unpaid principal amount of the Standby Loans
and participations in the Standby Loans and participations in Swingline Loans
held by each Lender shall be in the same proportion to the aggregate unpaid
principal amount of all Standby Loans and participations in Swingline Loans then
outstanding as the principal amount of its Standby Loans and participations in
Swingline Loans prior to such exercise of banker's lien, setoff or counterclaim
or other event was to the principal amount of all Standby Loans and
participations in Swingline Loans outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that, if any
such purchase or purchases or adjustments shall be made pursuant to this Section
2.17 and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment restored without
interest. Each Borrower expressly consents to the foregoing arrangements and
agrees that any Lender holding a participation pursuant to the foregoing
arrangements deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by such Borrower to such Lender by reason thereof as fully as if such Lender had
made a Standby Loan or Swingline Loan directly to such Borrower in the amount of
such participation.
SECTION 2.18. Payments. (a) Each Borrower shall make each
payment (including principal of or interest on any Borrowing or any Fees or
other amounts but excluding principal and interest on Swingline Loans, which
shall be paid directly to the Swingline Lender except as provided in Section
2.22(c)) hereunder and under any other Loan Document not later than 12:00
(noon), New York City time, on the date when due in dollars to the Agent at its
offices at Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, XX 00000, ABA # 021 00 00 89,
Account No. 00000000, Attention: Xxxxx Xxxxxxx, in immediately available funds.
(b) Whenever any payment (including principal of or interest
on any Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by either
Borrower hereunder shall be made, in accordance with Section 2.18, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding taxes imposed on the Agent's or any Lender's (or any
transferee's or assignee's, including a participation holder's (any such entity
a "Transferee")) net income and franchise taxes imposed on the Agent or any
Lender (or Transferee) by the United States or any jurisdiction under the laws
of which it is organized or in which its applicable lending office is located or
any political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If either Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable by such Borrower hereunder to the Lenders
(or any Transferee) or the Agent, (i) the sum payable shall be increased by the
amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.19) such
Lender (or Transferee) or the Agent (as the case may be) shall receive an amount
equal to the sum it would have received had no such deductions been made, (ii)
such Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxing authority or other Governmental
Authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender (or Transferee)
and the Agent for the full amount of Taxes and Other Taxes (including any Taxes
or Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.19) paid by such Lender (or Transferee) or the Agent, as the case may be, and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted by the relevant taxing authority or other Governmental
Authority. Such indemnification shall be made within 30 days after the date any
Lender (or Transferee) or the Agent, as the case may be, makes written demand
therefor. If a Lender (or Transferee) or the Agent shall become aware that it is
entitled to receive a refund in respect of Taxes or Other Taxes, it shall
promptly notify the relevant Borrower of the availability of such refund and
shall, within 30 days after receipt of a request by such Borrower, apply for
such refund at such Borrower's expense. If any Lender (or Transferee) or the
Agent receives a refund in respect of any Taxes or Other Taxes for which such
Lender (or Transferee) or the Agent has received payment from either Borrower
hereunder it shall promptly notify the relevant Borrower of such refund and
shall, within 30 days after receipt of a request by such Borrower (or promptly
upon receipt, if such Borrower has requested application for such refund
pursuant hereto), repay such refund to such Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by such Borrower under this
Section 2.19 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Lender (or Transferee) or the
Agent and without interest; provided that such Borrower, upon the request of
such Lender (or Transferee) or the Agent, agrees to return such refund (plus
penalties, interest or other charges) to such Lender (or Transferee) or the
Agent in the event such Lender (or Transferee) or the Agent is required to repay
such refund.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by either Borrower in respect of any payment to any Lender
(or Transferee) or the Agent, the relevant Borrower will furnish to the Agent,
at its address referred to in Section 10.01, the original or a certified copy of
a receipt issued by the appropriate Governmental Authority evidencing payment
thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.19
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(f) Each Lender (or Transferee) which is organized outside the
United States shall deliver to the Borrowers two copies of either Internal
Revenue Service Form W-8 BEN or Form W-8 ECI, or, in the case of a Lender (or
Transferee) claiming exemption from U.S. Federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio interest", a
Form W-8, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8, a certificate representing that such
Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not
a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrowers and is not a controlled foreign corporation related to
the Borrowers (within the meaning of
Section 864(d)(4) of the Code)) properly completed and duly executed by such
Lender (or Transferee) establishing that such payment is totally exempt from, or
is eligible for a reduced rate of, United States Federal withholding tax. Such
forms shall be delivered by each Lender organized outside the United States on
or before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Lender changes its applicable lending office by designating a
different lending office (a "New Lending Office"). In addition, each Lender
organized outside the United States shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Lender.
Notwithstanding any other provision of this Section 2.19(f), a Lender organized
outside the United States shall not be required to deliver any form pursuant to
this Section 2.19(f) that it is not legally able to deliver. Unless the
Borrowers and the Agent have received forms or other documents satisfactory to
them indicating that payments hereunder are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrowers or the Agent shall withhold taxes from such payments
at the applicable statutory rate in the case of payments to or for any Lender
(or Transferee) organized under the laws of a jurisdiction outside the United
States.
(g) Neither Borrower shall be required to pay any additional
amounts to any Lender (or Transferee) in respect of United States Federal
withholding tax pursuant to paragraph (a) above to the extent that the
obligation to pay such additional amounts (1) existed on the date such Lender
(or Transferee) became a party to this Agreement (or in the case of a Transferee
that is a participation holder, on the date such participation holder became a
Transferee hereunder) or (2) would not have arisen but for a failure by such
Lender (or Transferee) to comply with the provisions of paragraph (f) above
unless in the case of this clause (2) such failure results from (i) a change in
applicable law, regulation or official interpretation thereof, (ii) an
amendment, modification or revocation of any applicable tax treaty or a change
in official position regarding the application or interpretation thereof, in
each case after the date of the first Borrowing (and, in the case of a
Transferee, after the date of assignment or transfer) or (iii) an assignment,
participation, transfer or designation made at the request of the relevant
Borrower; provided, however, the relevant Borrower shall be required to pay
those amounts to any Lender (or Transferee) that it was required to pay
hereunder prior to the failure of such Lender (or Transferee) to comply with the
provisions of such paragraph (f).
(h) Any Lender (or Transferee) claiming any additional amounts
payable pursuant to this Section 2.19 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
requested by the relevant Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender (or Transferee).
SECTION 2.20. Termination or Assignment of Commitments Under
Certain Circumstances. In the event that any Lender shall fail to pay the Agent
amounts due it pursuant to Section 2.05(i) or any Lender shall have delivered a
notice or certificate pursuant to Section 2.13 or Section 2.14, or either
Borrower shall be required to make additional payments to any Lender under
Section 2.19 and provided that no Default or Event of Default shall have
occurred and be continuing, the Borrowers shall have the right, at their own
expense, upon notice to such Lender and the Agent, to require such Lender to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in Section 10.04) all its interests, rights and
obligations under this Agreement to another financial institution which shall
assume such obligations; provided that (i) no such termination or assignment
shall conflict with any law, rule or regulation or order of any Governmental
Authority, (ii) the Borrowers or the assignee, as the case may be, shall pay to
the affected Lender in immediately available funds on the date of such
termination or assignment the principal of and interest accrued to the date of
payment on the Loans (other than Competitive Loans and participations in
Swingline Loans) made by it hereunder and all other amounts accrued for its
account or owed to it hereunder, (iii) if the replacement financial institution
is not a Lender, the Agent shall have given its prior written consent to such
replacement and the Borrowers or such financial institution shall have paid a
processing and recordation fee of $3500 to the Agent and (iv) if a Commitment is
being assigned, the Swingline Lender shall have consented in writing to such
assignment (which consent will not be unreasonably withheld).
SECTION 2.21. Lending Offices and Lender Certificates;
Survival of Indemnity. To the extent reasonably possible, each Lender shall
designate an alternate lending office with respect to its Eurodollar Loans and
Fixed Rate Loans to reduce any liability of either Borrower to such Lender under
Section 2.13 or to avoid the unavailability of Eurodollar Loans under Section
2.10 or 2.14, so long as such
designation is not disadvantageous to such Lender. A good faith certificate of a
Lender setting forth a reasonable basis of computation and allocation of the
amount due under Section 2.13 or 2.15 shall be final, conclusive and binding on
the relevant Borrower in the absence of manifest error. The amount specified in
any such certificate shall be payable on demand after receipt by such Borrower
of such certificate. The obligations of each Borrower under Sections 2.13 and
2.15 shall survive the payment of all amounts due under any Loan Document and
the termination of this Agreement.
SECTION 2.22. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to Janus from time to time on and after the date hereof and until the earlier of
the Maturity Date and the termination of the Commitments in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of all outstanding Swingline Loans exceeding
$75,000,000, (ii) the sum of the total Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans exceeding the Total
Commitment then in effect or (iii) the aggregate principal amount of all
outstanding Loans made to Janus exceeding $100,000,000; provided that the
Swingline Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Each Swingline Loan shall bear interest at a rate
described in Section 2.08(d). Within the foregoing limits and subject to the
terms and conditions set forth herein, Janus may borrow, repay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, Janus shall notify the Agent
of such request by telephone (confirmed by telecopy), not later than 3:00 p.m.,
New York City time, on the day of a proposed Swingline Loan. Each such notice
shall be irrevocable and shall specify (i) the requested date of such Swingline
Loan (which shall be a Business Day), (ii) the Interest Period with respect to
the requested Swingline Loan (which may not end after the Maturity Date), (iii)
the amount of the requested Swingline Loan and (iv) the maturity of the
requested Swingline Loan (which shall be no later than five Business Days after
the date of such Swingline Loan). The Agent will promptly advise the Swingline
Lender of any such notice received from Janus. The Swingline Lender shall make
each Swingline Loan available to Janus by wire transfer of immediately available
funds to account number 2020016039 maintained by Janus with Xxxxx Fargo Bank
(ABA #000000000), 6:00 p.m., New York City time, on the requested date of such
Swingline Loan. Janus shall have the right at any time and from time to time to
prepay any Swingline Loan, in whole or in part, upon giving written or telecopy
notice (or telephone notice promptly confirmed by written or telecopy notice) to
the Swingline Lender and to the Agent before 12:00 (noon), (New York time) on
the date of prepayment at the Swingline Lender's address for notices in the
Administrative Questionnaire.
(c) The Swingline Lender may by written notice given to the
Agent not later than 10:00 a.m., New York City time, on any Business Day require
the Lenders to acquire participations on such Business Day in all or a portion
of the Swingline Loans outstanding. Such notice shall specify the aggregate
amount of Swingline Loans in which Lenders will participate. Promptly upon
receipt of such notice, the Agent will give notice thereof to each Lender,
specifying in such notice such Lender's percentage of such Swingline Loan or
Loans (which shall be equal to such Lender's Pro Rata Percentage). Each Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Agent, for the account of the Swingline Lender, such
Lender's Pro Rata Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of an Event of Default or a Default or reduction or termination
of the Total Commitment, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(c) with respect
to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis,
to the payment obligations of the Lenders), and the Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders. The Agent
shall notify Janus of any participations in any Swingline Loan acquired pursuant
to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to the Agent and not to the Swingline Lender. Any amounts received
by the Swingline Lender from Janus (or other party on behalf of Janus) in
respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Agent; any such amounts received by the Agent shall be promptly remitted by the
Agent to the Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve Janus of any default in the payment thereof.
SECTION 2.23. Increase in Total Commitment. (a) The Borrowers
may, at any time but in any event not more than once during the term of this
Agreement, by notice to the Agent, request that the aggregate amount of the
Total Commitment be increased by a maximum principal amount of $50,000,000 in
integral multiples of $10,000,000 (each a "Commitment Increase") to be effective
as of a date that is at least 90 days prior to the scheduled Maturity Date then
in effect as specified in the related notice to the Agent; provided, however,
that (i) in no event shall the aggregate amount of the Commitments after giving
effect to any such increase pursuant to this Section 2.23 at any time exceed
$350,000,000, (ii) a Commitment Increase shall be allocated pro rata between the
Borrowers in accordance with the percentage of the Total Commitment available to
each Borrower on the date hereof and (iii) on the date of any request by the
Borrowers for a Commitment Increase and on the related Increase Date, (x) the
applicable conditions set forth in Article IV shall be satisfied and (y) the
Leverage Ratio shall be less than or equal to 1.50 to 1.00.
(b) The Agent shall promptly notify the Lenders of a request
by the Borrowers for a Commitment Increase, which notice shall include (i) the
proposed amount of such requested Commitment Increase, (ii) the proposed
effective date of the Commitment Increase and (iii) the date by which Lenders
wishing to participate in the Commitment Increase must commit to an increase in
the amount of their respective Commitments (the "Commitment Date") , and shall
offer each Lender the opportunity to increase its Commitment by its Pro Rata
Percentage of the proposed increased amount. Each Lender shall, by notice to the
Borrowers and the Agent given not more than 30 days after the date of the
Borrower's notice, either agree to increase its Commitment by all or a portion
of the offered amount (each Lender so agreeing being an "Increasing Lender") or
decline to increase its Commitment (and any Lender that does not deliver such a
notice within such period of 30 days shall be deemed to have declined to
increase its Commitment) (each Lender so declining or deemed to have declined
being a "Non-Increasing Lender"). In the event that, on the 30th day after the
Borrowers shall have delivered a notice pursuant to the first sentence of this
paragraph, the Lenders shall have agreed pursuant to the preceding sentence to
increase their Commitments by an aggregate amount less than the increase in the
total Commitments requested by the Borrowers, the Agent may arrange for one or
more banks or other financial institutions (any such bank or other financial
institution referred to in this paragraph (b) being called an "Augmenting
Lender"), which may include any Lender, to extend Commitments or increase their
existing Commitments in an aggregate amount equal to the unsubscribed amount,
provided that each Augmenting Lender, if not already a Lender hereunder, shall
be subject to the approval of the Borrowers, the Agent and the Swingline Lender
(which approvals shall not be unreasonably withheld) and each Augmenting Lender
shall execute all such documentation as the Agent shall specify to evidence its
Commitment and its status as a Lender hereunder. Increases and new Commitments
created pursuant to this paragraph (b) shall become effective on the Increase
Effective Date (as hereinafter defined). Notwithstanding the foregoing, no
increase in the Total Commitment (or in the Commitment of any Lender) shall
become effective under this paragraph unless, (i) on the date of such increase,
the conditions set forth in paragraphs (b), (c) and (d) of Section 4.01 shall be
satisfied (with all references in such paragraphs to a Borrowing being deemed to
be references to such increase) and the Agent shall have received a certificate
to that effect dated such date and executed by Financial Officers of the
Borrowers, (ii) the Agent shall have received (with sufficient copies for each
of the Lenders) documents consistent with those delivered on the Effective Date
under paragraphs (a) and (c) of Section 4.02 as to the corporate power and
authority of the Borrowers to borrow hereunder after giving effect to such
increase and (iii) following any such increase pursuant to this Section, each
Lender shall have a Commitment in an amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(c) On the effective date (the "Increase Effective Date") of
any increase in the total Commitments pursuant to Section 2.23(b) (the
"Commitment Increase"), (i) the aggregate principal amount of the Standby Loans
outstanding (the "Initial Loans") immediately prior to giving effect to the
Commitment Increase on the Increase Effective Date shall be deemed to be paid,
(ii) each Increasing Lender and each Augmenting Lender that shall have been a
Lender prior to the Commitment Increase shall pay to the Agent in same day funds
an amount equal to the difference between (A) the product of (1) such Lender's
Pro Rata Percentage (calculated after giving effect to the Commitment Increase)
multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter
defined) and (B) the product of (1) such Lender's Pro Rata Percentage
(calculated without giving effect to the Commitment Increase) multiplied by (2)
the amount of the Initial Loans, (iii) each Augmenting Lender that shall not
have been a Lender prior to the Commitment Increase shall pay to Agent in same
day funds an amount equal to the product of (1) such Augmenting Lender's Pro
Rate Percentage (calculated after giving effect to the Commitment Increase)
multiplied by (2) the amount of the Subsequent Borrowings, and (iv) after the
Agent receives the funds specified in clauses (ii) and (iii) above, the Agent
shall pay to each Non-Increasing Lender the portion of such funds that is equal
to the difference between (A) the product of (1) such Non-Increasing Lender's
Pro
Rata Percentage (calculated without giving effect to the Commitment Increase)
multiplied by (2) the amount of the Initial Loans, and (B) the product of (1)
such Non-Increasing Lender's Pro Rata Percentage (calculated after giving effect
to the Commitment Increase) multiplied by (2) the amount of the Subsequent
Borrowings, (v) after the effectiveness of the Commitment Increase, the
Borrowers shall be deemed to have made new Standby Borrowings (the "Subsequent
Borrowings") in an aggregate principal amount equal to the aggregate principal
amount of the Initial Loans and of the types and for the Interest Periods
specified in a Borrowing Request delivered to the Agent in accordance with
Section 2.04, (vi) each Non-Increasing Lender, each Increasing Lender and each
Augmenting Lender shall be deemed to hold its Pro Rata Percentage of each
Subsequent Borrowing (calculated after giving effect to the Commitment Increase)
and (vii) the Borrowers shall pay each Increasing Lender and each Non-Increasing
Lender any and all accrued but unpaid interest on their respective Initial
Loans. The deemed payments made pursuant to clause (i) above in respect of each
Eurodollar Loan shall be subject to indemnification by the Borrowers pursuant to
the provisions of Section 2.15 if the Increase Effective Date occurs other than
on the last day of the Interest Period relating thereto.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants as to itself and its
subsidiaries to each of the Lenders that:
SECTION 3.01. Corporate Existence and Standing. Such Borrower
and each of its subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted where the failure to so qualify
would have a material adverse effect on such Borrower or such subsidiary.
SECTION 3.02. Authorization and Validity. Such Borrower has
the corporate power and authority and legal right to execute and deliver the
Loan Documents to which it is a party and to perform its obligations thereunder
(collectively, the "Transactions"). The Transactions have been duly authorized
by proper corporate proceedings, and the Loan Documents constitute legal, valid
and binding obligations of such Borrower enforceable against such Borrower in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
SECTION 3.03. No Conflict; Governmental Consent. None of the
Transactions will violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on such Borrower or any of its subsidiaries
or such Borrower's or any of its subsidiaries' articles or certificate of
incorporation or by-laws or the provisions of any indenture, instrument or
agreement to which such Borrower or any subsidiary is a party or is subject, or
by which it, or its property, is bound, or conflict therewith or constitute a
default thereunder, or result in the creation or imposition of any Lien in, of
or on the property of such Borrower or any subsidiary pursuant to the terms of
any such indenture, instrument or agreement. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
the execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents.
SECTION 3.04. Compliance with Laws; Environmental and Safety
Matters. (a) Such Borrower and each of its subsidiaries has, to the best
knowledge and belief of such Borrower, complied in all material respects with
all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof, having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective properties.
(b) Such Borrower and each subsidiary has complied in all
material respects with all Federal, state, local and other statutes, ordinances,
orders, judgments, rulings and regulations relating to environmental pollution
or to environmental regulation or control or to employee health or safety.
Neither such Borrower nor any subsidiary has received notice of any material
failure so to comply which could reasonably be expected to result in a Material
Adverse Effect. Such Borrower's and the subsidiaries' facilities do not manage
any hazardous wastes, hazardous substances, hazardous materials, toxic
substances, toxic pollutants or substances similarly denominated, as those terms
or similar terms are used in the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation
and Liability Act, the Toxic Substance Control Act, the Clean Air Act, the Clean
Water Act or any other applicable law relating to environmental pollution or
employee health and safety, in violation in any material respect of any law or
any regulations promulgated pursuant thereto. Such Borrower is aware of no
events, conditions or circumstances involving environmental pollution or
contamination or employee health or safety that could reasonably be expected to
result in liability on the part of such Borrower or any subsidiary which could
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.05. Financial Statements. Xxxxxxxx has heretofore
furnished to the Lenders its (a) consolidated balance sheets, statements of
income, changes in stockholders' equity and cash flows as of and for the fiscal
year ended December 31, 1999, audited by and accompanied by the opinion of
PricewaterhouseCoopers, independent public accountants and (b) its unaudited
consolidated balance sheets and statements of income as of and for the fiscal
quarter and the six-month period ended June 30, 2000, certified by its chief
Financial Officer. Such financial statements present fairly the financial
condition and results of operations of Xxxxxxxx and its Consolidated
Subsidiaries as of such dates and for such periods. Such balance sheets and the
notes thereto disclose all material liabilities, direct or contingent, of
Xxxxxxxx and the Consolidated Subsidiaries as of the dates thereof. The
financial statements referred to in clause (a) above were prepared in accordance
with GAAP applied on a consistent basis, and the financial statements referred
to in clause (b) above were prepared in accordance with GAAP applied on a
consistent basis subject to year-end adjustments.
SECTION 3.06. No Material Adverse Change. No material adverse
change in the business, properties, financial condition, prospects or results of
operations of such Borrower and its consolidated subsidiaries has occurred since
December 31, 1999. It is understood that volatility in the capital markets
generally will not in and of itself be deemed to be a material adverse change.
SECTION 3.07. Subsidiaries. Schedule 3.07 contains an accurate
list of all of (a) the significant joint ventures and (b) subsidiaries of such
Borrower which have any assets or operations, in each case on the date hereof,
setting forth their respective jurisdictions of organization and the percentage
of their respective ownership interest held by such Borrower or other
subsidiaries.
SECTION 3.08. Litigation; Contingent Obligations. Except as
set forth in Schedule 3.08 or as disclosed in Xxxxxxxx'x Quarterly Report on
Form 10-Q dated September 30, 2000 filed with the Securities and Exchange
Commission, (a) there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting such Borrower or any consolidated subsidiary of
such Borrower that (i) is required to be disclosed in any filing with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended, or (ii) might materially adversely affect (x) the business,
properties, financial condition, prospects or results of operations of such
Borrower or the ability of such Borrower to perform its obligations under the
Loan Documents or (y) the legality, validity or enforceability of the Loan
Documents against such Borrower and (b) neither such Borrower nor any
consolidated subsidiary of such Borrower has any material contingent
obligations.
SECTION 3.09. Material Agreements. Neither such Borrower nor
any subsidiary is a party to any agreement or instrument or subject to any
charter or other corporate restriction materially and adversely affecting its
business, properties or assets, operations or condition (financial or
otherwise). Neither such Borrower nor any subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (a) any agreement to which it is a party, which default
might have a material adverse effect on the consolidated business, properties,
financial condition, prospects or results of operations of such Borrower and its
subsidiaries or (b) any agreement or instrument evidencing or governing
Indebtedness which default would allow the holders thereof to cause such
Indebtedness to become due prior to its stated maturity, result in any mandatory
repayment, prepayment or redemption thereof, or require that any offer be made
to effect any repurchase or redemption thereof.
SECTION 3.10. Regulation U. (a) Margin Stock constitutes less
than 25% of those assets of such Borrower and its subsidiaries that are subject
to any limitation on sale, pledge, or other restriction hereunder.
(b) As of the date hereof, the only Margin Stock owned by
Xxxxxxxx or any of its Subsidiaries is approximately 33% of the outstanding
common stock of DST Systems and other Margin Stock with an aggregate value not
in excess of $1,000,000.
SECTION 3.11. Investment Company Act; Public Utility Holding
Company Act. (a) Neither such Borrower nor any Related Subsidiary (other than
Xxxxxx and Xxxxxx, in the case of Xxxxxxxx) is an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(b) Neither such Borrower nor any Related Subsidiary is a
"holding company" or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 3.12. Use of Proceeds. Such Borrower will use the
proceeds of the Loans only for the purposes set forth in the recitals to this
Agreement.
SECTION 3.13. Taxes. Such Borrower and each subsidiary have
filed all United States federal tax returns and all other tax returns which are
required to be filed and have paid all taxes due pursuant to said returns or
pursuant to any assessment received by such Borrower or any of its subsidiaries,
including without limitation all federal and state withholding taxes and all
taxes required to be paid pursuant to applicable law, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided. The charges, accruals and reserves on the books of such Borrower and
the Consolidated Subsidiaries in respect of any taxes or other governmental
charges are adequate.
SECTION 3.14. Accuracy of Information. No information, exhibit
or report furnished by such Borrower or any subsidiary of such Borrower to the
Agent or to any Lender in connection with the negotiation of the Loan Documents
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
SECTION 3.15. No Undisclosed Dividend Restrictions. Except as
set forth in Schedule 3.15 and except for limitations on the payment of
dividends under applicable law, none of the subsidiaries is subject to any
agreement, amendment, covenant or understanding that directly or indirectly
(through the application of financial covenants or otherwise) prohibits the
ability of such entity to declare or pay dividends.
ARTICLE IV. CONDITIONS OF LENDING
The obligations of the Lenders to make Loans hereunder, to
extend the Maturity Date and to increase the Total Commitment are subject to the
satisfaction of the following conditions:
SECTION 4.01. All Borrowings, Extension of Maturity Date and
Increase in Total Commitment. On the date of each Borrowing, including each
Borrowing in which Loans are refinanced with new Loans as contemplated by
Section 2.05, each extension of the Maturity Date and each increase in the Total
Commitment:
(a) The Agent shall have received (i) a notice of such
Borrowing as required by Section 2.03 or Section 2.04, as applicable,
or in the case of a Borrowing of a Swingline Loan, the Swingline Lender
and the Agent shall have received a notice requesting such Swingline
Loan as requested by Section 2.22, (ii) a notice of extension of
Maturity Date as required by Section 2.23 or (iii) a notice of increase
in aggregate Total Commitment as required by Section 2.23, as
applicable.
(b) The representations and warranties of each Borrower set
forth in Article III hereof shall be true and correct in all material
respects on and as of the date of such Borrowing, extension or
increase, as applicable, with the same effect as though made on and as
of such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) At the time of and immediately after such Borrowing,
extension or increase, as applicable, no Event of Default or Default
shall have occurred and be continuing.
(d) At the time of and immediately after such Borrowing,
extension or increase, as applicable, the outstanding aggregate
principal amount of all Loans made by the Lenders (i) to Xxxxxxxx shall
not exceed $200,000,000 and (ii) to Janus shall not exceed
$100,000,000.
Each Borrowing, extension or increase, as applicable, shall be deemed to
constitute a representation and warranty by each Borrower on the date of such
Borrowing, extension or increase, as applicable, as to the matters specified in
paragraphs (b), (c) and (d) of this Section 4.01; provided that Janus shall be
deemed to have made representations and warranties as to such matters only
insofar as they relate itself and its Related Subsidiaries.
SECTION 4.02. Conditions Precedent to Closing. On the date
hereof:
(a) The Agent shall have received a favorable written opinion
of (i) Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, counsel to Xxxxxxxx, to the
effect and covering those matters set forth in Exhibit C-1 hereto,
(ii)(A) Xxxxx & Xxxxxxx LLP, counsel to Janus, and (B) in-house counsel
to Janus, to the effect and collectively covering those matters set
forth in Exhibit C-2 hereto, and (iii) of Cravath, Swaine & Xxxxx,
counsel to the Agent, in each case as to matters reasonably requested
by the Agent and dated the date hereof and addressed to the Lenders.
The Borrowers hereby instruct their counsel to deliver such opinion to
the Agent.
(b) All legal matters incident to this Agreement and the
Borrowings hereunder shall be satisfactory to the Lenders and to
Cravath, Swaine & Xxxxx, counsel for the Agent.
(c) The Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments
thereto, of each Borrower, certified as of a recent date by the
Secretary of State of the jurisdiction of its incorporation and a
certificate as to the good standing of such Borrower as of a recent
date, from such Secretary of State; (ii) a certificate of the Secretary
or an Assistant Secretary of each Borrower dated the date hereof and
certifying (A) that attached thereto is a true and complete copy of the
by-laws of such Borrower as in effect on the date hereof and at all
times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors of such Borrower
authorizing the execution, delivery and performance of the Loan
Documents and the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and
effect, (C) that the certificate or articles of incorporation of such
Borrower have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature
of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Borrower; (iii) a
certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as
the Lenders or Cravath, Swaine & Xxxxx, counsel for the Agent, may
reasonably request.
(d) The Agent shall have received a certificate, dated the
date hereof and signed by a Financial Officer of each Borrower,
confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01.
(e) The Agent shall have received all Fees and other amounts
due and payable on or prior to the date hereof.
(f) There shall be no litigation, actual or threatened, that
in the reasonable judgment of the Agent would be likely to affect
materially and adversely the business, assets, condition (financial or
otherwise) or prospects of Xxxxxxxx or any of its Subsidiaries.
(g) The Agent shall have received evidence satisfactory to it
that the 2000 Credit Agreement shall have been terminated and all
amounts outstanding thereunder, including any fees, shall have been
paid in full.
ARTICLE V. AFFIRMATIVE COVENANTS
Each Borrower (except as the context otherwise specifically
provides) covenants and agrees with each Lender with respect to itself and its
Related Subsidiaries that, until the Commitments have expired or been terminated
and the principal of or interest on each Loan, any Fees or any other expenses or
amounts payable under any Loan Document shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing:
SECTION 5.01. Conduct of Business; Maintenance of Ownership of
Subsidiaries and Maintenance of Properties. (a) Such Borrower will, and will
cause each Related Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted and to do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic corporation in
its jurisdiction of incorporation and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted.
(b) Xxxxxxxx will at all times own, directly or indirectly, not less
than 66-2/3% of the outstanding voting securities of each of Janus, Xxxxxx and
Xxxxxx, in each case free and clear of any Liens on such securities.
(c) Such Borrower will, and will cause each Related Subsidiary to, do
all things necessary to maintain, preserve, protect and keep their properties
material to the conduct of their business in good repair, working order and
condition, and make all necessary and proper repairs, renewals and replacements
so that their businesses carried on in connection therewith may be properly
conducted at all times.
SECTION 5.02. Insurance. Such Borrower will, and will cause
each Related Subsidiary to, maintain with financially sound and reputable
insurance companies insurance on all their property in such amounts and covering
such risks as is consistent with sound business practice and customary with
companies engaged in similar lines of business, and such Borrower will (or will
cause such Related Subsidiary to) furnish to any Lender upon request full
information as to the insurance carried.
SECTION 5.03. Compliance with Laws and Payment of Material
Obligations and Taxes. (a) Such Borrower will, and will cause each Related
Subsidiary to, comply in all material respects with all laws (including, without
limitation, ERISA and the Fair Labor Standards Act, as amended), rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject.
(b) Such Borrower will, and will cause each Related Subsidiary
to, pay when due its material obligations including all taxes, assessments and
governmental charges and levies upon it or its income, profits or property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside.
SECTION 5.04. Financial Statements, Reports, etc. Such
Borrower will maintain, for itself and each Related Subsidiary, a system of
accounting established and administered in accordance with GAAP and Xxxxxxxx,
and in the case of paragraphs (d), (f), (h) and (i), Janus, will furnish to the
Agent and each Lender:
(a) in the case of Xxxxxxxx, within 105 days after the close
of each of its fiscal years, an unqualified (except for qualifications
relating to changes in accounting principles or practices reflecting
changes in GAAP and required or approved by Xxxxxxxx'x independent
certified public accountants) audit report certified by independent
certified public accountants, of nationally recognized standing,
prepared in accordance with GAAP on a consolidated basis for itself and
the Consolidated Subsidiaries, including balance sheets as of the end
of such period and related statements of income and changes in
stockholders' equity and cash flows;
(b) in the case of Xxxxxxxx, within 60 days after the close of
each of the first three quarterly periods of each of its fiscal years,
for itself and the Consolidated Subsidiaries, unaudited consolidated
balance sheets as at the close of each such period, consolidated
statements of income and a consolidated statement of cash flows for the
period from the beginning of such fiscal year to the end of such
quarter, all certified by its chief financial officer;
(c) in the case of Xxxxxxxx, together with the financial
statements required hereunder, a compliance certificate in
substantially the form of Exhibit D signed by its chief financial
officer showing the calculations necessary to determine compliance with
this Agreement and stating that no Default or Event of Default exists,
or if any Default or Event of Default exists, stating the nature and
status thereof;
(d) as soon as possible and in any event within 10 days after
any Responsible Officer of either Borrower knows or has reason to know
that (i) any Reportable Event has occurred with respect to any Plan,
(ii) any Withdrawal Liability has been incurred with respect to any
Multiemployer Plan or (iii) such Borrower or any member of the
Controlled Group has received
any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization within the meaning of Title IV of
ERISA, a statement, signed by the chief financial officer of such
Borrower, describing such Reportable Event, Withdrawal Liability or
notice and the action which such Borrower proposes to take with
respect thereto;
(e) promptly upon the furnishing thereof to the shareholders
of either Borrower, copies of all financial statements, reports and
proxy statements so furnished;
(f) promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports which Xxxxxxxx or any Consolidated Subsidiary files with the
Securities and Exchange Commission or financial reports material to the
interests of the Lenders or to the ability of either Borrower to
perform its obligations under the Loan Documents, it being understood
that Janus will not be required to deliver financial statements of the
types referred to in paragraphs (a) and (b) so long as such financial
information with respect to Janus is included in the financial
statements furnished by Xxxxxxxx pursuant to such paragraphs;
(g) in the case of Xxxxxxxx, within 10 days after the
execution thereof, copies of all amendments, supplements or
modifications of the Janus Stock Purchase Agreement;
(h) in the case of Janus, within 10 days after the
effectiveness thereof, copies of (i) all amendments, supplements,
modifications or other documentation relating to (1) the Janus World
Funds plc prospectus dated October 23, 2000 or (2) the Janus Universal
Funds prospectus dated March 8, 2000 and (ii) any other documentation,
including amendments, supplements or modifications, relating to any
Permitted B Share Transactions; and
(i) such other information (including financial information)
as the Agent or any Lender may from time to time reasonably request.
SECTION 5.05. Other Notices. Such Borrower will, and will
cause each Related Subsidiary to, give prompt notice in writing to the Lenders
of the occurrence of any Default or Event of Default and of any other
development, financial or otherwise, which might materially adversely affect its
business, properties or affairs or the ability of such Borrower to repay the
Obligations.
SECTION 5.06. Books and Records; Access to Properties and
Inspections. Such Borrower will, and will cause each Related Subsidiary to, keep
proper books and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. Such
Borrower will, and will cause each Related Subsidiary to, permit the Agent and
the Lenders to make reasonable inspections of the properties, corporate books
and financial records of such Borrower and each Related Subsidiary, to make
reasonable examinations and copies of the books of accounts and other financial
records of such Borrower and each Related Subsidiary, and to discuss the
affairs, finances and accounts of such Borrower and each Related Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Lenders may designate; provided that (a)
any inspection by any Lender shall be at such Lender's own expense and (b) the
Lenders shall coordinate the timing of their inspections through the Agent and
provide reasonable notice thereof.
SECTION 5.07. Use of Proceeds. Such Borrower will use the
proceeds of the Loans only for working capital and general corporate purposes of
such Borrower, including, without limitation, (a) to repurchase outstanding
shares of capital stock of such Borrower or any of its subsidiaries and (b) to
finance nonhostile acquisitions by such Borrower. No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations U and
X, or to finance any acquisition for which the board of directors or other
governing body of the target company has not given its consent or approval.
ARTICLE VI. NEGATIVE COVENANTS
Each Borrower (except as the context otherwise specifically
provides) covenants and agrees with each Lender with respect to itself and its
Related Subsidiaries that, until the Commitments have expired or been terminated
and the principal of or interest on each Loan, any Fees or any other expenses or
amounts payable under any Loan Document shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing:
SECTION 6.01. Indebtedness. (a) Such Borrower will not and
will not permit any Related Subsidiary to incur, create or suffer to exist any
Indebtedness, except:
(i) Indebtedness existing on the date hereof and described in
Schedule 6.01;
(ii) Indebtedness incurred to finance all or a portion of the
purchase price of assets acquired in the ordinary course of their
financial services businesses which Indebtedness is secured solely by a
Lien on the assets being acquired provided that such Indebtedness would
not cause a Default or an Event of Default under any other Section of
this Agreement;
(iii) Indebtedness of such Borrower to the other Borrower or
any Related Subsidiary of either Borrower and of any Related Subsidiary
of either Borrower to either Borrower or any Related Subsidiary of
either Borrower;
(iv) other Indebtedness not secured by any Liens and incurred
in the ordinary course of business and refinancings thereof, in an
aggregate principal amount at any one time outstanding that, when taken
together with (1) the aggregate principal amount of all Indebtedness of
the Borrowers and the Related Subsidiaries secured by any Liens
pursuant to Section 6.02(l) and (2) the aggregate amount of all
Attributable Debt in connection with all Sale and Leaseback
Transactions of the Borrowers and the Related Subsidiaries pursuant to
Section 6.03(a), does not exceed the greater of (x)$100,000,000 and (y)
10% of Consolidated Net Worth at such time (in each case minus the
aggregate amount of Indebtedness of the other Borrower and its Related
Subsidiaries permitted under this paragraph at such time), provided
that such Indebtedness would not cause a Default or an Event of Default
under any other Section of this Agreement;
(v) Indebtedness of such Borrower under the Loan Documents and
under the 364-Day Agreement;
(vi) Indebtedness of Janus in respect of Permitted B Share
Recourse Financing Transactions; provided that the aggregate principal
amount of all such Indebtedness shall not exceed $250,000,000 at any
time outstanding;
(vii) Indebtedness of Janus in respect of Permitted B Share
True Sale Transactions;
(viii) in the case of Janus and its Related Subsidiaries,
Indebtedness incurred to finance the acquisition, construction and
furnishing of the Xxxxx Property; provided that (x) such Indebtedness
is incurred prior to or within 90 days after the completion of such
construction or improvement and (y) the aggregate principal amount of
Indebtedness permitted by this clause (viii), when taken together with
the Attributable Debt in connection with the Sale and Leaseback
Transaction pursuant to Section 6.03(b), shall not exceed $250,000,000
at any time outstanding;
(ix) Permitted Subordinated Debt; provided that Xxxxxxxx shall
have delivered to the Agent a copy of all documentation relating to
such Permitted Subordinated Debt; and
(x) Guarantees of the Obligations in favor of the Agent and
the Lenders as required under paragraph (b) below.
(b) Neither Borrower will permit (i) any Related Subsidiary
to Guarantee any Indebtedness of either Borrower or (ii) any
Related Subsidiary to Guarantee any Indebtedness Guaranteed by
either Borrower, unless, in the case of each of the preceding clauses
(i) and (ii), prior thereto such Related Subsidiary shall have executed
and delivered to the Agent, for the benefit of the Lenders, an
unconditional Guarantee with respect to the Obligations satisfactory
in form and substance to the Agent.
SECTION 6.02. Liens. Such Borrower will not, nor will it
permit any Related Subsidiary to, create, incur, or suffer to exist any other
Lien in or on the property (now or hereafter acquired), or on any income or
revenues or rights in respect of any thereof, of such Borrower or any Related
Subsidiary, except:
(a) Liens for taxes, assessments or governmental charges or
levies on its property if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings;
(b) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary
course of business that secure payment of obligations not more than 60
days past due except for such Liens as are being contested in good
faith by appropriate proceedings;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and that do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of such Borrower
or its Related Subsidiaries;
(e) Liens existing on the date hereof and described in
Schedule 6.02 hereto; provided that such Liens shall secure only those
obligations that they secure on the date hereof;
(f) Liens granted on property or assets solely to secure
Indebtedness evidencing all or a portion of the purchase price of such
property or assets or any refinancing thereof provided that such Liens
attach only to the property or assets being acquired and that any such
refinancing does not increase the aggregate principal amount of such
Indebtedness but only to the extent that such Indebtedness would not
result in a Default or an Event of Default under any other Section of
this Agreement;
(g) Liens on the facilities located at the Xxxxx Property
securing Indebtedness permitted pursuant to Section 6.01(a)(viii);
(h) any Lien on Excess Margin Stock;
(i) Liens arising pursuant to the Janus Stock Purchase
Agreement and certain other stock purchase agreements and restriction
agreements requiring Xxxxxxxx to purchase outstanding capital stock of
Janus from minority stockholders of Janus;
(j) in the case of Janus, Liens deemed to exist in connection
with Permitted B Share Transactions; provided that such Liens extend
only to such B Share Fees and not to any other assets of Janus and its
Related Subsidiaries;
(k) Environmental Liens securing clean-up costs or fines not
in excess of $25,000,000 in aggregate principal amount (minus the
aggregate principal amount of such clean-up costs or fines imposed
against the other Borrower and its Related Subsidiaries) except for
Environmental Liens that are being contested in good faith by
appropriate proceedings and the enforcement of which is stayed; and
(l) Liens, in addition to Liens permitted under the above
clauses (a) through (k), securing Indebtedness the aggregate principal
amount of which, when taken together with (1) the aggregate principal
amount of Indebtedness of the Borrowers and the Related Subsidiaries
outstanding pursuant to Section 6.01(a)(iv) and (2) the aggregate
amount of all Attributable Debt in connection with all Sale and
Leaseback Transactions of the Borrowers and the Related Subsidiaries
pursuant to Section 6.03(a)(other than Sale and Leaseback Transactions
consummated prior to the date hereof), does not exceed the greater of
(x) $100,000,000 and (y) 10% of Consolidated Net Worth at such time (in
each case minus the aggregate amount of Indebtedness of the other
Borrower and its Related Subsidiaries permitted under this paragraph at
such time).
SECTION 6.03. Sale and Lease-Back Transactions. Such Borrower
will not, and will not permit any Related Subsidiary to, enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now
owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "Sale and Leaseback
Transaction"); except:
(a) such Borrower or any Related Subsidiary may enter into
any Sale and Leaseback Transaction if (i) at the time of such
Transaction no Default or Event of Default shall have occurred and be
continuing, (ii) the proceeds from the sale of the subject property
shall be at least equal to its fair market value on the date of such
sale and (iii) the aggregate amount of all Attributable Debt in
connection with all Sale and Leaseback Transactions of such Borrower
and the Related Subsidiaries (other than Sale and Leaseback
Transactions consummated prior to the date hereof), when taken together
with the (1) the aggregate principal amount of Indebtedness of the
Borrowers and the Related Subsidiaries outstanding pursuant to Section
6.01(a)(iv) and (2) the aggregate principal amount of all Indebtedness
of the Borrowers and the Related Subsidiaries secured by any Liens
pursuant to Section 6.02(l), does not at any time exceed the greater of
(x) $100,000,000 and (y) 10% of Consolidated Net Worth on any date of
determination (in each case minus the aggregate amount of Indebtedness
of the other Borrower and its Related Subsidiaries permitted under this
paragraph on such date); and
(b) Janus may engage in a Sale and Leaseback Transaction with
respect to the facilities located at the Xxxxx Property; provided that
the aggregate amount of the Attributable Debt in connection with such
Sale and Leaseback Transaction, when taken together with the aggregate
principal amount of Indebtedness outstanding pursuant to Section
6.01(a)(viii), does not exceed $250,000,000 at any time.
SECTION 6.04. Mergers, Consolidations and Transfers of Assets.
Such Borrower will not, and will not permit any Related Subsidiary to, merge
into or consolidate with any other person, or permit any other person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or any substantial part
of its assets (whether now owned or hereafter acquired) or any capital stock of
any Related Subsidiary of such Borrower, except that (a) such Borrower and any
Related Subsidiary may sell assets in the ordinary course of business, (b) Janus
may sell or transfer assets in connection with Permitted B Share True Sale
Transactions and (c) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be continuing (i)
any wholly owned Subsidiary may merge into Xxxxxxxx in a transaction in which
Xxxxxxxx is the surviving corporation, (ii) any wholly owned Subsidiary may
merge into or consolidate with any other wholly owned Subsidiary in a
transaction in which the surviving entity is a wholly owned Subsidiary and no
person other than a Borrower or a wholly owned Related Subsidiary receives any
consideration, (iii) such Borrower and its Related Subsidiaries may sell,
transfer, lease or dispose of assets out of the ordinary course of business
having depreciated book values (determined in accordance with GAAP) that in the
aggregate for all assets so disposed of during the term of this Agreement (other
than pursuant to the following clause (iv)) do not exceed 10% of Consolidated
Net Worth on any date of determination (minus amounts sold by the other Borrower
and its Related Subsidiaries) to any other person and (iv) Xxxxxxxx may sell the
common stock of DST Systems for cash or may exchange the common stock of DST
Systems for the common stock of a publicly-traded entity whose senior unsecured
non-credit enhanced long term indebtedness for borrowed money is rated Baa3 or
better by Xxxxx'x Investors Service or BBB- by Standard and Poor's, in either
case to a third party buyer that is not an Affiliate of Xxxxxxxx; provided that
such sale or exchange is for fair market value.
SECTION 6.05. Transactions with Affiliates. Such Borrower will
not, and will not permit any Related Subsidiary to, sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates (other
than the other Borrower or any Related Subsidiary), except that such Borrower or
any Related Subsidiary may engage in any of the foregoing transactions in the
ordinary course of business at prices and on terms and conditions which, taken
as a whole, are not less favorable to such Borrower or such Related Subsidiary
than would prevail in an arm's-length transaction with unrelated third parties.
SECTION 6.06. Certain Other Agreements. Such Borrower will
not, and will not permit any Related Subsidiary to (i) be bound by or enter into
any agreement, amendment, covenant, understanding or revision to any agreement
which directly or indirectly (through the application of financial covenants or
otherwise) prohibits or restricts the ability of such Related Subsidiary to
declare and pay dividends or make any loans or advances or any other
distribution to Xxxxxxxx (except for limitations on the payment of dividends set
forth in Schedule 3.15 or imposed by applicable law); or (ii) be bound by or
enter into any agreement, indenture, contract, instrument, amendment or lease
containing any covenant restricting the incurrence of Indebtedness or governing
such Borrower's and the Related Subsidiaries' financial condition if such
covenant is more restrictive than the analogous provision of this Agreement
unless (A) such Borrower has delivered a copy of such document to the Agent not
less than 10 Business Days prior to executing the same and (B) the Borrowers
enter into an amendment to this Agreement to add the more restrictive covenant
or to conform the analogous provision of this Agreement to such more restrictive
covenant.
SECTION 6.07. Certain Financial Covenants. Xxxxxxxx will not:
(a) permit at any date the Leverage Ratio to exceed 2.0 to 1.0;
(b) permit the Fixed Charge Ratio to be less than 4.0 to 1.0 on the
last day of any fiscal quarter;
(c) permit Consolidated Net Loss for (i) any fiscal quarter or (ii) any
period of two or more consecutive fiscal quarters to be greater than
$300,000,000;
(d) permit Consolidated Adjusted Net Worth to be less than $500,000,000
at any time; or
(e) permit Average Assets Under Management to be less than
$225,000,000,000 on the last day of any month.
SECTION 6.08. Margin Stock. (a) Such Borrower will not, nor
will it permit any Related Subsidiary to, purchase or otherwise acquire Margin
Stock if, after giving effect to any such purchase or acquisition, Margin Stock
owned by Xxxxxxxx and its Subsidiaries would represent more than 25% of the
assets of Xxxxxxxx and its Subsidiaries on a consolidated basis (valued in
accordance with Regulation U); provided that notwithstanding the foregoing, (i)
Xxxxxxxx may repurchase its capital stock pursuant to Xxxxxxxx'x stock buyback
program described in Xxxxxxxx'x Current Report on Form 8-K filed with the
Securities and Exchange Commission on July 25, 2000, (ii) Xxxxxxxx may exchange
capital stock of DST Systems for Margin Stock as permitted under Section
6.04(iv) and (iii) such Borrower and its Related Subsidiaries may purchase
Margin Stock in an aggregate amount of $1,000,000 (minus amounts purchased by
the other Borrower and its Related Subsidiaries) during any fiscal year. For
purposes of this Section 6.08(a), on any date of determination, Margin Stock
will be valued at its current market price and the total assets of Xxxxxxxx and
its Subsidiaries will be valued at the higher of (x) the market capitalization
of Xxxxxxxx and (y) such amount as the management of Xxxxxxxx reasonably
determines could be obtained for Xxxxxxxx and its Subsidiaries in an
arm's-length transaction with a third party purchaser treating Xxxxxxxx and its
Subsidiaries as a going concern.
(b) Such Borrower will not, nor will it permit any Related
Subsidiary to, cause any capital stock owned by it to become Margin Stock unless
prior to such time this Agreement shall have been amended in a manner reasonably
satisfactory to the Borrowers and the Agent (i) to cause all Margin Stock owned
by the Borrowers and the Restricted Subsidiaries to be subject to the
restrictions of Section 6.02 and Section 6.04 and (ii) to require the Regulation
U margin requirements to be met at all times.
ARTICLE VII. EVENTS OF DEFAULT
In case of the happening of any of the following events
("Events of Default"):
(a) any representation or warranty made or deemed made by or
on behalf of either Borrower or any Subsidiary to the Lenders or the
Agent under or in connection with this Agreement, any Loan, or any
certificate or information delivered in connection with this Agreement
or any other Loan Document shall be materially false on the date as of
which made;
(b) nonpayment by either Borrower of principal of any Loan
when due;
(c) nonpayment by either Borrower of interest upon any Loan or
of any Fee or other Obligations (other than an amount referred to in
(b) above) under any of the Loan Documents within five Business Days
after the same becomes due;
(d) the breach by either Borrower of any of the terms or
provisions of Section 5.07 or in Article VI;
(e) the breach by either Borrower (other than a breach which
constitutes an Event of Default under (a), (b), (c) or (d) above) of
any of the terms or provisions of this Agreement which is not remedied
within fifteen days after written notice from the Agent or any Lender;
(f) failure of either Borrower or any Subsidiary to pay any
Indebtedness in excess of $10,000,000 (or its equivalent in any other
currency) in aggregate principal amount when due; or the default by
either Borrower or any Subsidiary in the performance of any term,
provision or condition contained in any agreement under which any
Indebtedness in excess of $10,000,000 (or its equivalent in any other
currency) in aggregate principal amount was created or is governed, the
effect of which is to permit the holder or holders of such Indebtedness
to cause such Indebtedness to become due prior to its stated maturity;
or the default by either Borrower or any Subsidiary in the performance
of any term, provision or condition contained in any agreement under
which any Indebtedness in excess of $10,000,000 (or its equivalent in
any other currency) in aggregate principal amount was created or is
governed, the effect of which is to cause the holder or holders of such
Indebtedness or a trustee or other representative of such holders to
cause such Indebtedness to become due prior to its stated maturity; or
any Indebtedness in excess of $10,000,000 (or its equivalent in any
other currency) in aggregate principal amount shall be declared to be
due and payable or required to be prepaid (other than by a regularly
scheduled payment) prior to the stated maturity thereof;
(g) either Borrower or any Subsidiary shall (i) have an order
for relief entered with respect to it under the Federal Bankruptcy
Code, (ii) not pay, or admit in writing its inability to pay, its debts
generally as they become due, (iii) make a general assignment for the
benefit of creditors, (iv) apply for, seek, consent to, or acquiesce
in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its
property, (v) institute any proceeding seeking an order for relief
under the Federal Bankruptcy Code or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action to authorize or effect any
of the foregoing actions set forth in this paragraph (g) or (vii) fail
to contest in good faith any appointment or proceeding described in the
following paragraph (h);
(h) without the application, approval or consent of the
Borrowers or any Subsidiary, a receiver, trustee, examiner, liquidator
or similar official shall be appointed for either Borrower or any
Subsidiary or any substantial part of its property, or a proceeding
described in clause (v) of the preceding paragraph (g) shall be
instituted against either Borrower or any Subsidiary and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 consecutive days;
(i) any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of
all of the property of either Borrower or any Subsidiary or an amount
of such property or assets having depreciated book values (determined
in accordance with GAAP) that in the aggregate for all properties and
assets so appropriated or taken during the term of this Agreement
exceed 15% of Consolidated Net Worth on any date of determination;
(j) either Borrower or any Subsidiary shall fail within 30
days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $10,000,000 (or its equivalent in any
other currency) that is not stayed on appeal or otherwise being
appropriately contested in good faith;
(k) the Unfunded Liabilities of all Plans shall exceed in the
aggregate $10,000,000, or any Reportable Event shall occur in
connection with any Plan or any Withdrawal Liability in excess of
$7,500,000 shall be incurred with respect to any Multiemployer Plan or
either Borrower or any member of the Controlled Group has received any
notice concerning the imposition of Withdrawal Liability in excess of
$5,000,000 or a determination that a Multiemployer Plan with
respect to which the potential Withdrawal Liability of either Borrower
or any member of the Controlled Group would exceed $5,000,000 is, or
is expected to be, insolvent or in reorganization, within the meaning
of Title IV of ERISA;
(l) a Change in Control shall have occurred;
(m) Xxxxxxxx shall cease to own beneficially at least 66-2/3%
of the outstanding voting securities of any of Xxxxxx, Xxxxx or Xxxxxx;
or
(n) any Loan Document, including the Guarantee of Xxxxxxxx set
forth in Article VIII, shall cease at any time to be valid, enforceable
or in full force and effect, or either Borrower or any Subsidiary shall
so assert in writing;
then, and in every such event (other than an event with respect to either
Borrower described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Agent, at the request of the Required
Lenders, shall, by notice to the Borrowers, take either or both of the following
actions, at the same or different times: (i) terminate forthwith the Commitments
and (ii) declare the Loans then outstanding to be forthwith due and payable in
whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and
all other liabilities of either Borrower accrued hereunder and under any other
Loan Document, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by each Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding; and in any event with respect to
either Borrower described in paragraph (g) or (h) above, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of either Borrower accrued hereunder and under any other Loan
Document, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by each Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding.
ARTICLE VIII. GUARANTEE
In order to induce the Lenders to extend credit to Janus
hereunder, Xxxxxxxx hereby irrevocably and unconditionally guarantees, as a
primary obligor and not merely as a surety, the Obligations of Janus. Xxxxxxxx
further agrees that the due and punctual payment of the Obligations of Janus may
be extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee hereunder
notwithstanding any such extension or renewal of any Obligation.
Xxxxxxxx waives presentment to, demand of payment from and
protest to Janus of any of the Obligations, and also waives notice of acceptance
of its obligations and notice of protest for nonpayment. The obligations of
Xxxxxxxx hereunder shall not be affected by (a) the failure of any Lender to
assert any claim or demand or to enforce any right or remedy against Janus under
the provisions of this Agreement, any other Loan Document or otherwise; (b) any
extension or renewal of any of the Obligations; (c) any rescission, waiver,
amendment or modification of, or release from, any of the terms or provisions of
this Agreement or any other Loan Document or agreement; (d) the failure or delay
of any Lender to exercise any right or remedy against any other guarantor of the
Obligations; (e) the failure of any Lender to assert any claim or demand or to
enforce any remedy under any Loan Document or any other agreement or instrument;
(f) any default, failure or delay, wilful or otherwise, in the performance of
the Obligations; or (g) any other act, omission or delay to do any other act
which may or might in any manner or to any extent vary the risk of Xxxxxxxx or
otherwise operate as a discharge of Xxxxxxxx as a matter of law or equity.
Xxxxxxxx further agrees that its guarantee hereunder
constitutes a promise of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Lender to any
balance of any deposit account or credit on the books of any Lender in favor of
Janus or any other Person.
The obligations of Xxxxxxxx hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, and shall
not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise.
Xxxxxxxx further agrees that its obligations hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise
be restored by any Lender upon the bankruptcy or reorganization of any Borrower
or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Lender may have at law or in equity against Xxxxxxxx by
virtue hereof, upon the failure of Janus to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, Xxxxxxxx hereby promises to and will, upon receipt of
written demand by the Agent, forthwith pay, or cause to be paid, to the Agent
for distribution to the Lenders in cash an amount equal the unpaid principal
amount of such Obligation.
Upon payment in full by Xxxxxxxx of any Obligation of Janus,
each Lender shall, in a reasonable manner, assign to Xxxxxxxx the amount of such
Obligation owed to such Lender and so paid, such assignment to be pro tanto to
the extent to which the Obligation in question was discharged by Xxxxxxxx, or
make such disposition thereof as Xxxxxxxx shall direct (all without recourse to
any Lender and without any representation or warranty by any Lender). Upon
payment by Xxxxxxxx of any sums as provided above, all rights of Xxxxxxxx
against Janus arising as a result thereof by way of right of subrogation or
otherwise shall in all respects be subordinated and junior in right of payment
to the prior indefeasible payment in full of all the Obligations owed by Janus
to the Lenders.
ARTICLE IX. THE AGENT
In order to expedite the transactions contemplated by this
Agreement, Citibank, N.A. is hereby appointed to act as Agent on behalf of the
Lenders. Each of the Lenders hereby irrevocably authorizes the Agent to take
such actions on behalf of such Lender or holder and to exercise such powers as
are specifically delegated to the Agent by the terms and provisions hereof and
of the other Loan Documents, together with such actions and powers as are
reasonably incidental thereto. The Agent is hereby expressly authorized by the
Lenders, without hereby limiting any implied authority, (a) to receive on behalf
of the Lenders all payments of principal of and interest on the Loans and all
other amounts due to the Lenders hereunder, and promptly to distribute to each
Lender its proper share of each payment so received; (b) to give notice on
behalf of each of the Lenders to either Borrower of any Event of Default
specified in this Agreement of which the Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by
either Borrower pursuant to this Agreement as received by the Agent.
Neither the Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by
either Borrower of any of the terms, conditions, covenants or agreements
contained in any Loan Document. The Agent shall not be responsible to the
Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents or other instruments
or agreements. The Agent shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. The Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agent nor any of its directors, officers, employees or
agents shall have any responsibility to either Borrower on account of the
failure of or delay in performance or breach by any Lender of any of its
obligations hereunder or to any Lender on account of the failure of or delay in
performance or breach by any other Lender or either Borrower of any of their
respective obligations hereunder or under any other Loan Document or in
connection herewith or therewith. The Agent may execute any and all duties
hereunder by or through agents or employees and shall be entitled to rely upon
the advice of legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good faith
by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Agent shall be under
no duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent
as provided below, the Agent may resign at any time by notifying the Lenders and
the Borrowers. Upon any such resignation, the Required Lenders shall have the
right, after consultation with the Borrowers, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice
of its resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent which shall be a bank with an office in New York, New
York, having a combined capital and surplus of at least $50,000,000 or an
Affiliate of any such bank. Upon the acceptance of any appointment as Agent
hereunder by a successor bank, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After the Agent's resignation hereunder, the provisions of this Article and
Section 10.05 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder, the Agent in
its individual capacity and not as Agent shall have the same rights and powers
as any other Lender and may exercise the same as though it were not the Agent,
and the Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrowers or any Subsidiary or
other Affiliate thereof as if it were not the Agent.
Each Lender agrees (i) to reimburse the Agent, on demand, in
the amount of its pro rata share (based on its Commitment hereunder or, if the
Total Commitment shall be terminated, the percentage it holds of the aggregate
outstanding principal amount of the Loans) of any expenses incurred for the
benefit of the Lenders by the Agent, including counsel fees and compensation of
agents and employees paid for services rendered on behalf of the Lenders, which
shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold
harmless the Agent and any of its directors, officers, employees, agents or
advisors, on demand, in the amount of such pro rata share, from and against any
and all liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against it in its
capacity as the Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrowers; provided that no
Lender shall be liable to the Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Agent or any of its directors, officers, employees, agents or
advisors.
Each Lender acknowledges that it has, independently and
without reliance upon the Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
Each Lender hereby acknowledges that the documentation agent
and the syndication agent have no duties or liability hereunder other than in
their capacity as a Lender.
ARTICLE X. MISCELLANEOUS
SECTION 10.01. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed or sent by facsimile transmission or other
telegraphic communications equipment of the sending party, as follows:
(a) if to Xxxxxxxx, to it at 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000-0000, Attention of the Vice President -
Finance (Telecopy No. (000) 000-0000), with a copy to the Vice
President and Secretary (Telecopy No. (000) 000-0000);
(b) if to Janus, to it at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000 Attention of Vice President - Accounting (Telecopy No. (303)
394-9207) with a copy to General Counsel (Telecopy No. (000) 000-0000);
(c) if to the Agent, to it at Citibank, N.A., Xxx Xxxxx Xxx,
Xxxxx 000, Xxx Xxxxxx, XX 00000, Attention of Xxxxx Xxxxxxx (Telecopy
No. (000) 000-0000) for Standby Borrowings and for Competitive
Borrowings,; and
(d) if to the Swingline Lender, to it at Citibank, N.A., Xxx
Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, XX 00000, Attention of Xxxxx Xxxxxxx
(Telecopy No. (000) 000-0000); and
(e) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
facsimile or other telegraphic communications equipment of the sender, or on the
date five Business Days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 10.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 10.01.
SECTION 10.02. Survival of Agreement. All covenants,
agreements, representations and warranties made by either Borrower herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the Lenders
of the Loans, regardless of any investigation made by the Lenders or on their
behalf, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or any Fee or any other amount payable under
this Agreement or any other Loan Document is outstanding and unpaid and so long
as the Commitments have not been terminated.
SECTION 10.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrowers and the Agent and
when the Agent shall have received copies hereof which, when taken together,
bear the signatures of each Lender, and thereafter shall be binding upon and
inure to the benefit of the Borrowers, the Agent and each Lender and their
respective successors and assigns, except that neither Borrower shall have the
right to assign its rights hereunder or any interest herein without the prior
consent of all the Lenders. Delivery of an executed signature page of any Loan
Document by facsimile transmission shall be effective as delivery of a manually
executed counterpart thereof.
SECTION 10.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of either Borrower, the Agent or the
Lenders that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment and the Standby Loans at the time owing to
it); provided, however, that (i) each such assignment shall be to an Eligible
Assignee, (ii) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Lender's rights and obligations under this
Agreement, (iii) the amount of the Commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Agent) shall not be less
than $10,000,000 (or, if less, the remaining amount of such Lender's Loans and
Commitments) and shall be an integral multiple of $1,000,000, (iv) the parties
to each such assignment shall execute and deliver to the Agent an Assignment and
Acceptance and a processing and recordation fee of $3,500 if the assignee shall
not be a Lender and (v) the assignee, if it shall not be a Lender, shall deliver
to the Agent an Administrative Questionnaire. Upon acceptance and recording
pursuant to paragraph (e) of this Section 10.04, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto (but shall
continue to be entitled to the benefits of Sections 2.13, 2.15, 2.19 and 10.05,
as well as to any Fees accrued for its account hereunder and not yet paid)).
Notwithstanding the foregoing, any Lender assigning its rights and obligations
under this Agreement may retain any Competitive Loans made by it outstanding at
such time, and in such case shall retain its rights hereunder in respect of any
Loans so retained until such Loans have been repaid in full in accordance with
this Agreement.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment, and the outstanding balances of its Standby Loans and
Competitive Loans, in each case without giving effect to assignments thereof
which have not become effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto or the financial condition of
the Borrowers or any Subsidiary or the performance or observance by the
Borrowers or any Subsidiary of any of its obligations under this Agreement, any
other Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee represents and warrants that it is an Eligible
Assignee and is legally authorized to enter into such Assignment and Acceptance;
(iv) such assignee confirms that it has received a copy of this Agreement,
together with copies of the most recent financial statements delivered pursuant
to Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at one of its offices in The City
of New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive in the absence of manifest error and the Borrowers,
the Agent and the Lenders may treat each person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrowers
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee and, if applicable,
the Swingline Lender, an Administrative Questionnaire completed in respect of
the assignee (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) above and, if
required, the written consent of the Borrowers and the Agent to such assignment,
the Agent shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Lenders.
(f) Each Lender may without the consent of the Borrowers, the
Swingline Lender or the Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.13, 2.15 and 2.19 to the same extent as if
they were Lenders, provided that the participating banks or other entities shall
not be entitled to receive any more than the selling Lender would have received
had it not sold the participation and (iv) the Borrowers, the Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of either
Borrower relating to the Loans and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications
or waivers decreasing any fees payable hereunder or the amount of principal of
or the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans or
changing or extending the Commitments).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 10.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to either Borrower furnished to such
Lender by or on behalf of such Borrower; provided that, prior to any such
disclosure of information designated by such Borrower as confidential, each such
proposed assignee or participant shall execute a confidentiality agreement in
the form of Exhibit E hereto.
(h) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC") of such Granting Lender, identified as such in writing from time to
time by the Granting Lender to the Agent and the Borrowers, the option to
provide to the Borrowers all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrowers pursuant to Section 2.01,
provided that (i) nothing herein shall constitute a commitment to make any Loan
by any SPC, (ii) if an SPC elects not to exercise such option or otherwise fails
to provide all or any part of such Loan, the Granting Lender shall be obligated
to make such Loan pursuant to the terms hereof (iii) such Granting Lender's
other obligations under this Agreement shall remain unchanged, (iv) such
Granting Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (v) the Borrowers, the Agent and the
other Lenders shall continue to deal solely and directly with such Granting
Lender in connection with such Granting Lender's rights and obligations under
this Agreement. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were
made by the Granting Lender. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with the related Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding anything to
the contrary contained in this Section 10.04 or in Section 10.16, any SPC may
(i) with notice to, but without the prior written consent of, the Borrowers or
the Agent and without paying any processing fee therefor, assign all or a
portion of its interests in any Loans to its Granting Lender or to any financial
institutions providing liquidity and/or credit facilities to or for the account
of such SPC to fund the Loans made by such SPC or to support the securities (if
any) issued by such SPC to fund such Loans and (ii) disclose on a confidential
basis, to the extent such disclosure would be permitted under Section 10.16 as
if such SPC were a Lender, any non-public information relating to its Loans to
any rating agency, commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC.
(i) Any Lender may at any time assign all or any portion of
its rights under this Agreement issued to it to a Federal Reserve Bank; provided
that no such assignment shall release a Lender from any of its obligations
hereunder. In order to facilitate such an assignment to a Federal Reserve Bank,
each Borrower, shall, at the request of the assigning Lender, duly execute and
deliver to the assigning Lender a promissory note or notes evidencing the Loans
made to such Borrower by the assigning Lender hereunder.
(j) Neither Borrower shall assign or delegate any of its
rights or duties hereunder.
SECTION 10.05. Expenses; Indemnity. (a) Each Borrower agrees
to pay all reasonable out-of-pocket expenses incurred by the Agent in connection
with the preparation of this Agreement and the other Loan Documents and in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by the Agent or any Lender in connection with the
enforcement or protection of their rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel
for the Agent, and, in
connection with any such enforcement or protection, the fees, charges and
disbursements of any other counsel for the Agent or any Lender. Each Borrower
further agrees that it shall indemnify the Lenders from and hold them harmless
against any documentary taxes, assessments or charges made by any Governmental
Authority by reason of the execution and delivery of this Agreement or any of
the other Loan Documents.
(b) Each Borrower agrees to indemnify the Agent, each Lender
and each of their respective directors, officers, employees, agents and advisors
(each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document by such Borrower or any agreement or
instrument contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated thereby, (ii) the use of the proceeds of the
Loans by such Borrower or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from (x) the gross negligence or
wilful misconduct of such Indemnitee or (y) the material breach of such
Indemnitee's obligations under this Agreement. The Borrowers also agree not to
assert any claim for special, indirect, consequential or punitive damages
against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, arising out of or otherwise relating to this Agreement, any of the
transactions contemplated herein or the actual or proposed use of proceeds of
the Loans.
(c) The provisions of this Section 10.05 shall remain
operative and in full force and effect regardless of the expiration of the term
of this Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Agent or any Lender. All amounts due under this
Section 10.05 shall be payable on written demand therefor.
SECTION 10.06. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of either Borrower against any of and all
the obligations of such Borrower now or hereafter existing under this Agreement
and other Loan Documents held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of
the Agent or any Lender in exercising any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Agent and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on either Borrower in any case shall entitle such
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrowers and the
Required Lenders; provided, however, that no such agreement shall (i) decrease
the principal amount of, or extend the maturity of or any scheduled principal
payment date or date for the payment of any interest on any Loan, or waive or
excuse any such payment or any part thereof, or decrease the rate of interest on
any Loan, without the prior written consent of each Lender affected thereby,
(ii) change or extend the Commitment or decrease the Facility Fees or
Utilization Fees of any Lender without the prior written consent of such Lender,
(iii) amend or modify the provisions of Section 2.16, the provisions of this
Section or the definition of "Required Lenders", without the prior written
consent of each Lender or (iv) release the Guarantor from its Guarantee under
Article VIII, or limit its liability in respect of such Guarantee, in any case
without the prior written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Agent or the Swingline Lender hereunder without the prior written consent of the
Agent or the Swingline Lender, as the case may be. Each Lender shall be bound by
any waiver, amendment or modification authorized by this Section and any consent
by any Lender pursuant to this Section shall bind any person subsequently
acquiring a Loan from it.
SECTION 10.09. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Lender, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate
of interest payable on the Loans made by such Lender, together with all Charges
payable to such Lender, shall be limited to the Maximum Rate.
SECTION 10.10. Entire Agreement. This Agreement and the other
Loan Documents constitute the entire contract between the parties relative to
the subject matter hereof. Any previous agreement among the parties with respect
to the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 10.11. Waiver of Jury Trial. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement or any of the other Loan
Documents. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement and the other Loan Documents, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 10.11.
SECTION 10.12. Severability. In the event any one or more of
the provisions contained in this Agreement or in any other Loan Document should
be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.13. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 10.03.
SECTION 10.14. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process.
(a) Each Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by
law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against any other party or its properties in the
courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 10.16. Confidentiality. (a) Each Lender agrees to keep
confidential and not to disclose (and to cause its officers, directors,
employees, agents, Affiliates and representatives to keep confidential and not
to disclose) all Information (as defined below), except that such Lender shall
be permitted to disclose Information (i) to such of its officers, directors,
employees, advisors, agents, Affiliates and representatives as need to know such
Information in connection with the servicing and protection of its interests in
respect of its Loans and Commitments, the Loan Documents and the Transactions;
(ii) to the extent required by applicable laws and regulations or by any
subpoena or similar legal process or requested by any Governmental Authority
having jurisdiction over such Lender; (iii) to the extent such Information (A)
becomes publicly available other than as a result of a breach by such Lender of
this Agreement, (B) is generated by such Lender or becomes available to such
Lender on a nonconfidential basis from a source other than either Borrower or
its Affiliates or the Agent, or (C) was available to such Lender on a
nonconfidential basis prior to its disclosure to such Lender by either Borrower
or its Affiliates or the Agent; (iv) as provided in Section 10.04(g); or (v) to
the extent either Borrower shall have consented to such disclosure in writing.
As used in this Section 10.16, "Information" shall mean the Confidential
Memorandum and any other confidential materials, documents and information
relating to either Borrower that such Borrower or any of its Affiliates may have
furnished or made available or may hereafter furnish or make available to the
Agent or any Lender in connection with this Agreement.
(b) Each Transferee shall be deemed, by accepting any
assignment or participation hereunder, to have agreed to be bound by this
Section 10.16.
IN WITNESS WHEREOF, Stilwell, Janus, the Agent and the Lenders
have caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
XXXXXXXX FINANCIAL INC.,
by
/s/ Xxxxxxx X. XxXxxxxx
----------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President - Finance
JANUS CAPITAL CORPORATION,
by
/s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President of
Accounting and Taxation
CITIBANK, N.A., individually and as
Administrative Agent and as
Swingline Lender,
by
/s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
XXXXX FARGO BANK WEST, N.A. ,
individually and as
Documentation Agent,
by
/s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, individually
and as Syndication Agent,
by
/s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N..A.,
by
/s/ Xxxx X. X'Xxxxx
----------------------------
Name: Xxxx X. X'Xxxxx
Title: Managing Director
THE GOVERNOR AND COMPANY OF THE BANK OF
IRELAND,
by
/s/ X. Xxxxx
----------------------------
Name: X. Xxxxx
Title: Authorized signatory
by
/s/ X. Xxxxxx
----------------------------
Name: X. Xxxxxx
Title: Manager
BANK OF NEW YORK,
by
/s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
by
/s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
by
/s/ Xxxxx Xxx
----------------------------
Name: Xxxxx Xxx
Title: Assistant Vice President
FIRSTAR BANK N.A.,
by
/s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FLEET NATIONAL BANK,
by
/s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
HSBC,
by
/s/ L. Xxx Xxxxx
----------------------------
Name: L. Xxx Xxxxx
Title: Senior Vice President
THE ROYAL BANK OF SCOTLAND plc,
by
/s/ Xxxxx XxXxxx
----------------------------
Name: Xxxxx XxXxxx
Title: Senior Vice President
STATE STREET BANK AND TRUST COMPANY,
by
/s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
UMB, N.A.,
by
/s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
Citibank, N.A., as Agent
for the Lenders referred to below
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
[Date]
Re: Five-Year Credit Agreement Referred to Below
Dear Sirs:
The undersigned, [Xxxxxxxx Financial Inc./Janus Capital
Corporation] (the "Borrower"), refers to the Five-Year Competitive Advance and
Revolving Credit Facility Agreement dated as of December 7, 2000 (as it may
hereafter be amended, modified, extended or restated from time to time, the
"Credit Agreement"), among the Borrower, [Janus/Xxxxxxxx] the Lenders from time
to time party thereto, Citibank, N.A., as Administrative Agent, Xxxxx Fargo Bank
West, N.A., as Documentation Agent, and The Chase Manhattan Bank, as Syndication
Agent. Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives you notice pursuant to Section 2.03(a) of the Credit Agreement that it
requests a Competitive Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Competitive Borrowing is
requested to be made:
(A) Date of Competitive Borrowing
(which is a Business ----------------------
(B) Principal Amount of
Competitive Borrowing 1 ----------------------
(C) Interest rate basis 2
----------------------
(D) Interest Period and the last
day thereof 3 ----------------------
Upon acceptance of any or all of the Loans offered by the
Banks in response to this request, the Borrower shall be deemed to have
represented and warranted that the conditions to lending specified in Section
4.01(b), (c) and (d) of the Credit Agreement have been satisfied.
Very truly yours,
[XXXXXXXX FINANCIAL INC./JANUS
CAPITAL CORPORATION],
by
-------------------------------
Title: [Responsible Officer]
----------------------------
1/ Not less than 10,000,000 (and in integral multiples $1,000,000) or
greater than the Total Commitment then available.
2/ Eurodollar Loan or Fixed Rate Loan.
3/ Which shall be subject to the definition of "Interest Period" and end
not later than the Maturity Date.
EXHIBIT A-2
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Name of Bank]
[Address]
Attention:
[Date]
Re: Five-Year Credit Agreement Referred to Below
Dear Sirs:
Reference is made to the Five-Year Competitive Advance and
Revolving Credit Facility Agreement dated as of December 7, 2000 (as it may
hereafter be amended, modified, extended or restated from time to time, the
"Credit Agreement"), among Xxxxxxxx Financial Inc., Janus Capital Corporation,
the Lenders from time to time party thereto, Citibank, N.A., as Administrative
Agent, Xxxxx Fargo Bank West, N.A., as Documentation Agent, and The Chase
Manhattan Bank, as Syndication Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. [Xxxxxxxx Financial Inc./Janus Capital Corporation] made a
Competitive Bid Request on , 20 , pursuant to Section 2.03(a) of the Credit
Agreement, and in that connection you are invited to submit a Competitive Bid by
[Date]/[Time].4 Your Competitive Bid must comply with Section 2.03(b) of the
Credit Agreement and the terms set forth below on which the Competitive Bid
Request was made:
(A) Date of Competitive Borrowing
------------------
(B) Principal amount of
Competitive Borrowing
------------------
(C) Interest rate basis
------------------
(D) Interest Period and the last
day thereof
------------------
Very truly yours,
CITIBANK, N.A., as Agent,
by
------------------------
Title:
----------------------------
4/ The Competitive Bid must be received by the Agent (i) in the case of
Eurodollar Loans, not later than 9:30 a.m., New York City time, three Business
Days before a proposed Competitive Borrowing, and (ii) in the case of Fixed Rate
Loans, not later than 9:30 a.m., New York City time, on the Business Day of a
proposed Competitive Borrowing.
EXHIBIT A-3
FORM OF COMPETITIVE BID
Citibank, N.A., as Agent
for the Lenders referred to below
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
[Date]
Re: Five-Year Credit Agreement Referred to Below
Dear Sirs:
The undersigned, [Name of Bank], refers to the Five-Year
Competitive Advance and Revolving Credit Facility Agreement dated as of December
7, 2000 (as it may hereafter be amended, modified, extended or restated from
time to time, the "Credit Agreement"), among Xxxxxxxx Financial Inc., Janus
Capital Corporation, the Lenders from time to time party thereto, Citibank,
N.A., as Administrative Agent, Xxxxx Fargo Bank West, N.A., as Documentation
Agent, and The Chase Manhattan Bank, as Syndication Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The undersigned hereby makes a Competitive
Bid pursuant to Section 2.03(b) of the Credit Agreement, in response to the
Competitive Bid Request made by [Xxxxxxxx/Xxxxx] on , 20 , and in that
connection sets forth below the terms on which such Competitive Bid is made:
(A) Principal Amount 5
------------------
(B) Competitive Bid Rate 6
------------------
(C) Interest Period and last
day thereof
-----------------
The undersigned hereby confirms that it is prepared, subject
to the conditions set forth in the Credit Agreement, to extend credit to
[Xxxxxxxx/Janus] upon acceptance by [Xxxxxxxx/Xxxxx] of this bid in accordance
with Section 2.03(d) of the Credit Agreement.
Very truly yours,
[NAME OF BANK],
by
--------------------------------
Title:
----------------------------
5/ Not less than $10,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of $1,000,000. Multiple bids will be
accepted by the Xxxxx.
0/ XXXX Rate + or - %, in the case of Eurodollar Loans or %, in the
case of Fixed Rate Loans.
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
Citibank, N.A., as Agent
for the Lenders referred to below
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Re: Five-Year Credit Agreement Referred to Below
Dear Sirs:
The undersigned, [Xxxxxxxx Financial Inc./Janus Capital
Corporation] (the "Borrower"), refers to the Five-Year Credit Agreement dated as
of December 7, 2000 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among the Borrower, Janus
Capital Corporation/Xxxxxxxx Financial Inc., the Lenders from time to time party
thereto, Citibank, N.A., as Administrative Agent, Xxxxx Fargo Bank West, N.A.,
as Documentation Agent, and The Chase Manhattan Bank, as Syndication Agent.
In accordance with Section 2.03(c) of the Credit Agreement, we
have received a summary of bids in connection with our Competitive Bid Request
dated ___________ and in accordance with Section 2.03(d) of the Credit
Agreement, we hereby accept the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Lender
---------------- ----------------- ------
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/Margin Lender
---------------- ----------------- ------
$ [%]/[+/-. %]
$
The $ should be deposited in Citibank, N.A. account
number [ ]on [date].
Very truly yours,
[XXXXXXXX FINANCIAL INC./JANUS
CAPITAL CORPORATION],
by
--------------------------------
Name:
Title:
EXHIBIT A-5
FORM OF STANDBY BORROWING REQUEST
Citibank, N.A., as Agent
for the Lenders referred to below
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
[Date]
Re: Five-Year Credit Agreement Referred to Below
Dear Sirs:
The undersigned, [Xxxxxxxx Financial Inc./Janus Capital
Corporation] (the "Borrower"), refers to the Five-Year Competitive Advance and
Revolving Credit Facility Agreement dated as of December 7, 2000 (as it may
hereafter be amended, modified, extended or restated from time to time, the
"Credit Agreement"), among the Borrower, [Janus/Xxxxxxxx] the Lenders from time
to time party thereto and Citibank, N.A., as Administrative Agent, Xxxxx Fargo
Bank West, N.A., as Documentation Agent, and The Chase Manhattan Bank, as
Syndication Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 2.04 of the Credit
Agreement that it requests a Standby Borrowing under the Credit Agreement, and
in that connection sets forth below the terms on which such Standby Borrowing is
requested to be made:
(A) Date of Standby Borrowing
(which is a Business Day) -----------------
(B) Principal Amount of
Standby Borrowing 7 -----------------
(C) Interest rate basis 8
------------------
(D) Interest Period and the last
day thereof 9 -----------------
Upon acceptance of any or all of the Loans made by the Lenders
in response to this request, the Borrower shall be deemed to have represented
and warranted that the conditions to lending specified in Section 4.01(b), (c)
and (d) of the Credit Agreement have been satisfied.
Very truly yours,
[XXXXXXXX FINANCIAL INC./JANUS
CAPITAL CORPORATION],
by
-------------------------------
Title: [Responsible Officer]
----------------------------
7/ Not less than $5,000,000 (and in integral multiples of $1,000,000) or
greater than the Total Commitment then available.
8/ Eurodollar Loan or ABR Loan.
9/ Which shall be subject to the definition of "Interest Period" and end
not later than the Maturity Date.
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five-Year Competitive Advance and
Revolving Credit Facility Agreement dated as of December 7, 2000 (the "Credit
Agreement"), among Xxxxxxxx Financial Inc., a Delaware corporation, Janus
Capital Corporation, a Colorado corporation, the lenders from time to time party
thereto (the "Lenders"), Citibank, N.A., as agent for the Lenders (in such
capacity, the "Agent"), Xxxxx Fargo Bank West. N.A., as Documentation Agent, and
The Chase Manhattan Bank, as Syndication Agent. Terms defined in the Credit
Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to
the Assignee, and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Effective Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Commitment of the Assignor on the Effective Date and the Competitive Loans and
Standby Loans and Swingline Loans owing to the Assignor which are outstanding on
the Effective Date. Each of the Assignor and the Assignee hereby makes and
agrees to be bound by all the representations, warranties and agreements set
forth in Section 10.04(c) of the Credit Agreement, a copy of which has been
received by each such party. From and after the Effective Date (i) the Assignee
shall be a party to and be bound by the provisions of the Credit Agreement and,
to the extent of the interests assigned by this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and under the Loan Documents
and (ii) the Assignor shall, to the extent of the interests assigned by this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Agent together with (i) if the Assignee is organized under the laws of a
jurisdiction outside the United States, the forms specified in Section 2.19(f)
of the Credit Agreement, duly completed and executed by such Assignee, (ii) if
the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire and (iii) a processing and recordation fee of
$3,500.
3. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment (may not be fewer than 5 Business Days after the
Date of Assignment):
Percentage Assigned of
Facility/Commitment (set
forth, to at least 8
Principal Amount assigned decimals, as a percentage
(and identifying information of the Facility and the
as to individual Competitive aggregate Commitments of
Facility Loans) all Lenders thereunder)
-------------------- ---------------------------- -------------------------
Commitment Assigned:
$ %
Standby Loans:
Competitive Loans:
Swingline Loans:
The terms set forth above and on the reverse side
hereof are hereby agreed to:
Accepted */
-
, as Assignor CITIBANK, N.A., as Agent
----------------------------
By: By:
------------------------------------- ---------------------------
Name: Name:
Title: Title:
, as Assignee XXXXXXXX FINANCIAL INC.,
----------------------------
By: By:
------------------------------------- ---------------------------
Name: Name:
Title: Title:
JANUS CAPITAL CORPORATION,
By:
---------------------------
Name:
Title:
CITIBANK , N.A. , as Swingline
Lender,
By:
---------------------------
Name:
Title:
--------------------
*/ To be completed only if consents are required under Section 10.04(b).
Exhibit C-1
December 7, 2000
The Agent and the Lenders who are parties
to the Credit Agreements described below
Gentlemen:
We have acted as counsel to Xxxxxxxx Financial Inc., a Delaware
corporation (the "Company") in connection with the execution and delivery of the
364-Day Competitive Advance and Revolving Credit Facility Agreement and the
Five-Year Competitive Advance Credit Facility Agreement (the "Credit
Agreements") each dated as of December 7, 2000 by and among the Company, Janus
Capital Corporation and Citibank, N.A. as administrative agent for the Lenders
from time to time party thereto (the "Agent"). All capitalized terms used in
this opinion without definition shall have the meanings attributed to them in
the Credit Agreements. As used herein "Significant Subsidiary" shall mean any
Related Subsidiary of the Company which has assets which comprise more than 10%
of the assets of the Company and its Consolidated Subsidiaries.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary or advisable
for purposes of this opinion, including:
(i) The Credit Agreements and the notes payable to certain
Lenders which have been executed and delivered by the Company on the
date hereof (the "Notes");
(ii) The Certificate of Incorporation of the Company as certified
by the Secretary of State of Delaware as of a recent date;
(iii) The By-laws of the Company as in effect on the date hereof;
(iv) The resolutions duly adopted by a special meeting to action
by the Board of Directors of the Company on December 4, 2000,
authorizing, among other things, that an officer of the Company
execute and deliver the Credit Agreements and any documents
contemplated thereby;
(v) A certificate issued by the Secretary of State of Delaware
dated December 1, 2000, as to the good standing of the Company in the
State of Delaware and a certificate issued by the Secretary of State
of Missouri as to the qualification and good standing of the Company
in the State of Missouri dated December 1, 2000; and
(vi) The Certificate of Incorporation for each of the Company's
Significant Subsidiaries (listed on Schedule I hereto) and good
standing
certificates for each of the Significant Subsidiaries (as described on
Schedule 1 hereto).
As to questions of fact material to the opinions set forth herein, we
have relied upon the representations of the Company set forth in the Credit
Agreements, and factual information we have obtained from such other sources as
we have deemed reasonable. We have assumed without investigation that there has
been no relevant change or development between the dates as of which the
information cited in the preceding sentence was given and the date of this
letter. We have not independently verified the accuracy of the matters set forth
in the written statements or certificates upon which we have relied, nor have we
undertaken any lien, suit or judgment searches or searches of court dockets in
any jurisdiction. For purposes of the opinion in paragraph 1, we have relied
exclusively upon certificates issued by relevant governmental authorities in the
relevant jurisdictions, and such opinion is not intended to provide any
conclusion or assurance beyond that conveyed by those certificates.
We have assumed (i) the genuineness and authenticity of all documents
examined by us and all signatures thereon, and the conformity to originals of
all copies of all documents examined by us; (ii) that the execution, delivery
and/or acceptance of the Credit Agreements have been duly authorized by all
action, corporate or otherwise, necessary by the parties to the Credit
Agreements other than the Company (those parties other than the Company are
hereinafter collectively referred to as the "Other Parties") and that the Credit
Agreements are enforceable against each of the Other Parties which is a party
thereto; (iii) the legal capacity of all natural persons executing the Credit
Agreements; (iv) that each of the Other Parties has satisfied those legal
requirements that are applicable to it to the extent necessary to make the
Credit Agreements enforceable against them; (v) that each of the Other Parties
has complied with all legal requirements pertaining to its status as such status
relates to its rights to enforce the Credit Agreements; (vi) that each of the
Credit Agreements accurately describe and contain the mutual understandings of
the parties, and that there are no oral or written statements or agreements or
usages of trade or courses of prior dealings among the parties that would
modify, amend or vary any of the terms thereof; (vii) that the Other Parties
will act in accordance with, and will refrain from taking any action that is
forbidden by, the terms and conditions of the Credit Agreements; (viii) the
constitutionality or validity of a relevant statute, rule, regulation or agency
action is not in issue; (ix) all agreements other than the Credit Agreements
which we have reviewed in connection with our letter would be enforced as
written; (x) that there has not been any mutual mistake of fact or
misunderstanding, fraud, duress or undue influence; and (xi) the representations
and warranties in the Credit Agreements are accurate and complete.
We confirm that we do not have any actual knowledge which has caused us
to conclude that our reliance and assumptions cited in the two preceding
paragraphs are unwarranted or that any information supplied in this letter is
wrong.
As used in this opinion with respect to any matter, the qualifying
phrase "to the best of our knowledge" or "our actual knowledge" or such similar
phrase means the conscious awareness of facts or other information by: (i) the
lawyer signing this opinion; and (ii) any
lawyer who has had active involvement in negotiating or preparing the Credit
Agreements. In this regard, it is noted that we have not made any special review
or investigation in connection with rendering any opinion so qualified other
than inquiry of various officers, in-house legal counsel and key employees of
the Company and a review of material agreements brought to our attention.
Based on the foregoing, and in reliance thereon, and subject to the
qualifications, limitations and exceptions stated herein, we are of the opinion,
having due regard for such legal considerations as we deem relevant, that:
1. Each of the Company and its Significant Subsidiaries and Xxxxxx Money
Managers plc: (a) is validly existing and in good standing under the laws of its
jurisdiction of organization, and (b) is qualified to do business in those
jurisdictions, if any, identified on Schedule I attached hereto. Each of the
Company and its Significant Subsidiaries has the power and authority to conduct
its businesses as now conducted.
2. The execution, delivery and performance of the Loan Documents and the
Notes are within the Company's corporate powers and have been duly authorized by
all necessary corporate action, and the Loan Documents and the Notes have been
duly executed and delivered by the Company.
3. No approval, authorization, consent, adjudication or order of, or filing
with, any Governmental Authority, which has not been obtained or made, is
required to be obtained or made by the Company or any Significant Subsidiary in
connection with the execution, delivery or performance of the Loan Documents or
in connection with the borrowings or repayments thereof made in connection with
the Credit Agreements.
4. The execution and delivery of the Credit Agreements and the Notes by the
Company and the performance by the Company of the Obligations have been duly
authorized by all necessary corporate action and proceedings on the part of the
Company and do not:
(a) require any consent of the Company's shareholders;
(b) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Company or any Significant
Subsidiary or the Company's or any Significant Subsidiary's articles of
incorporation or bylaws or any indenture, material instrument or material
agreement binding upon the Company or any Significant Subsidiary and of
which we are aware; or
(c) result in, or require the creation or imposition of any Lien
pursuant to the provisions of any indenture, material instrument or
material agreement binding upon the Company or any Significant Subsidiary
and of which we are aware.
5. Each of the Loan Documents and the Notes constitutes the legal, valid
and binding obligations of the Company enforceable against the Company in
accordance with their respective terms.
6. To the best of our knowledge, and except as disclosed in the Form 10-Q
of the Company for the fiscal quarter ended September 30, 2000 filed with the
Securities and Exchange Commission, there is no action, suit, governmental
inquiry, investigation or other proceeding pending or overtly threatened against
the Company or any Related Subsidiary that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to materially
adversely affect the business, properties, financial condition or results of
operations of the Company and its Subsidiaries taken as a whole or the ability
of the Company to perform its obligations under the Credit Agreements and the
Notes.
7. The making of the Loans and the application of the proceeds thereof by
the Company as provided in the Credit Agreements will not result in a violation
of Regulation T, U or X or the Board of Governors of the Federal Reserve Board.
8. Neither the Company nor any Related Subsidiary (other than Xxxxxx and
Xxxxxx) is (a) an "investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940, and neither the Company nor any
Related Subsidiary is a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935.
Our opinions as herein expressed are subject to the following
qualifications and limitations:
1. Our opinions are subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws. This exception
includes:
(a) the Federal Bankruptcy Code and thus comprehends, among others,
matters of turn-over, automatic stay, avoiding powers, fraudulent transfer,
preference, discharge, conversion of a non-recourse obligation into a
recourse claim, limitations on ipso facto and anti-assignment clauses and
the coverage of pre-petition security agreements applicable to property
acquired after a petition is filed;
(b) all other Federal and state bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement and assignment for
the benefit of creditors laws that affect the rights of creditors generally
or that have reference to or affect only creditors of specific types of
debtors;
(c) state fraudulent transfer and conveyance laws; and
(d) judicially developed doctrines in this area, such as substantive
consolidation of entities and equitable subordination.
2. Our opinions are subject to the effect of general principles of equity,
whether applied by a court of law or equity. This limitation includes
principles:
(a) governing the availability of specific performance, injunctive
relief or other equitable remedies, which generally place the award of such
remedies, subject to certain guidelines, in the discretion of the court to
which application for such relief is made;
(b) affording equitable defenses (e.g., waiver, latches and estoppel)
against a party seeking enforcement;
(c) requiring good faith and fair dealing in the performance and
enforcement of a contract by the party seeking its enforcement;
(d) requiring reasonableness in the performance and enforcement of an
agreement by the party seeking enforcement of the contract;
(e) requiring consideration of the materiality of (i) a breach and
(ii) the consequences of the breach to the party seeking enforcement;
(f) requiring consideration of the impracticability or impossibility
of performance at the time of attempted enforcement; and
(g) affording defenses based upon the unconscionability of the
enforcing party's conduct after the parties have entered into the contract.
3. Our opinions are subject to the effect of the rules of law that:
(a) limit or affect the enforcement of provisions of a contract that
purport to waive, or to require waiver of, (i) the obligations of good
faith, fair dealing, diligence and reasonableness, (ii) broadly or vaguely
stated rights, (iii) statutory, regulatory or constitutional rights, except
to the extent that the statute, regulation or constitution explicitly
allows waivers; (iv) unknown future defenses; and (v) rights to damages;
(b) provide that choice of law, forum selection, consent to
jurisdiction, consent to and specification of service of process and jury
waiver clauses in contracts are not necessarily binding;
(c) limit the enforceability of provisions releasing, exculpating or
exempting a party from, or requiring indemnification of a party for,
liability for its own action or inaction;
(d) may, where less than all of a contract may be unenforceable, limit
the enforceability of the balance of the contract to circumstances in which
the unenforceable portion is not an essential part of the agreed exchange;
(e) govern and afford judicial discretion regarding the determination
of damages and entitlement to attorneys' fees and other costs;
(f) may permit a party that has materially failed to render or offer
performance required by the contract to cure that failure unless (i)
permitting a cure would unreasonably hinder the aggrieved party from making
substitute arrangements for performance, or (ii) it was important in the
circumstances to the aggrieved party that performance occur by the date
stated in the contract; and
(g) limit the enforceability of any provision purporting: (i) to cause
an indemnification, guaranty or undertaking to survive repayment of the
Loans or the satisfaction, foreclosure, settlement, discharge or other
termination of the Credit Agreement; (ii) to require the payment of
interest (or discount or equivalent amounts) or any premium or "make whole"
payment at a rate or in an amount, after the maturity or after or upon
acceleration of the respective liabilities evidenced or secured thereby, or
after or during the continuance of any default, event of default or other
circumstance, or upon repayment, which a court may determine to be
unreasonable, a penalty or a forfeiture or (iii) to create or waive a
trust, agency, attorney-in-fact or other fiduciary relationship.
4. We express no opinion as to the laws of any jurisdiction other than the
laws of the States of Missouri and New York (excluding, in each case, local
laws), Delaware corporate laws and the federal laws of the United States of
America.
5. Except as set forth in paragraph 7 above and to the extent that such
issues are specifically addressed herein, we express no opinion as to any of the
following legal issues:
(a) pension and employee benefit laws and regulations (e.g. ERISA);
(b) compliance with fiduciary duty requirements;
(c) Federal and state tax laws and regulations;
(d) Federal and state laws, regulations and policies concerning (I)
national and local emergency, (ii) possible judicial deference to acts of
sovereign states, and (iii) criminal civil forfeiture laws;
(e) Federal and state securities laws and regulations; and
(f) other Federal and state statutes of general application to the
extent they provide for criminal prosecution (e.g., mail fraud and wire
fraud statutes).
6. We call your attention to the fact that the enforceability of any
provision purporting to require any party to execute promissory notes in the
future is subject to general principles of equity and the discretion of a court
of equity as to whether such a provision should be enforced.
This opinion is rendered on the date hereof and we have no continuing
obligation hereunder to inform you of changes of law or fact subsequent to the
date hereof or facts of which we have become aware after the date hereof. This
opinion covers matters as of the date hereof and does not address events which
may take place after the date hereof but are contemplated by the Credit
Agreements or amendments to the Credit Agreements after the date hereof.
This opinion is limited to the matters set forth herein; no opinion may
be inferred or implied beyond the matters expressly stated in this letter.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other Person (other than your successors and assigns as
Lenders and Persons that acquire participations in your Loans) without our prior
written consent.
Very truly yours,
XXXXXXXXXXXX XXXX & XXXXXXXXX
SCHEDULE I
Articles of Incorporation of Significant Subsidiaries
Xxxxxxxx Management, Inc., a Delaware corporation
Xxxxxx, LLC, a Nevada limited liability company
Good-Standing Certificates of Significant Subsidiaries
Xxxxxxxx Management, Inc.
Long Form Good-Standing Certificate from Delaware Secretary of State
Good-Standing Certificate from California Secretary of State
Good-Standing Certificate from Colorado Secretary of State
Xxxxxx, LLC
Long Form Good-Standing Certificate from Nevada Secretary of State
Good-Standing Certificate from Colorado Secretary of State
Good-Standing Certificate from Georgia Secretary of State
Xxxxxx Money Managers PLC
Good-Standing Certificate from the Companies House
Exhibit X-0
Xxxxxxxx 0, 0000
Xxxxxxxxxx listed on Schedule A
Re: Five-Year Competitive Advance and Revolving Credit Facility Agreement
Ladies and Gentlemen:
This firm has acted as counsel to Janus Capital Corporation, a
Colorado corporation (the "Company"), in connection with the Five-Year
Competitive Advance and Revolving Credit Facility Agreement, dated as of
December 7, 2000 (the "Credit Agreement"), among the Company, Xxxxxxxx Financial
Inc., Citibank, N.A., individually as Swingline Lender and as Administrative
Agent, the Lenders from time to time party thereto, Xxxxx Fargo Bank West, N.A.,
as Documentation Agent, and The Chase Manhattan Bank, as Syndication Agent. This
opinion letter is being furnished to you pursuant to the requirements set forth
in Section 4.02 of the Credit Agreement in connection with the closing
thereunder on the date hereof. Capitalized terms used herein that are defined in
the Credit Agreement shall have the meanings set forth in the Credit Agreement,
unless otherwise defined herein.
For purposes of this opinion letter, we have examined copies
of the following documents (the "Documents"):
1. An executed copy of the Credit Agreement.
2. Executed copies of promissory notes (the "Notes") by the Company in
favor of Firstar Bank N.A., Fleet National Bank and State Street
Bank and Trust Company (which are the only Lenders which
requested and received promissory notes from the Company).
3. The Restated and Amended Articles of Incorporation of the Company,
as certified by the Secretary of State of the State of Colorado on
November 15, 2000 and as certified by the Secretary of the Company
on the date hereof as being complete, accurate and in effect.
4. The Restated and Amended Bylaws of the Company as of January 5,
1996, as certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect.
5. A certificate of good standing of the Company issued by the
Secretary of State of the State of Colorado dated November 14,
2000.
6. Certain resolutions of the Board of Directors of the Company
adopted by unanimous written consent dated as of December 6,
2000, as certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect, relating to
authorization of the Credit Agreement and arrangements in
connection therewith.
7. Certain certificates of officers of the Company dated December 7,
2000, as to certain facts relating to the Company.
8. A certificate of the Secretary of the Company, dated December 7,
2000, as to the incumbency and signature of certain officers
of the Company.
The Credit Agreement and the Notes are collectively referred
to herein as the "Loan Documents."
In our examination of the Credit Agreement and the other
Documents, we have assumed the genuineness of all signatures, the legal capacity
of all natural persons, the accuracy and completeness of all of the Documents,
the authenticity of all originals of the Documents and the conformity to
authentic originals of all of the Documents submitted to us as copies (including
telecopies). As to matters of fact relevant to the opinions expressed herein, we
have relied on the representations and statements of fact made in the Documents.
We have not independently established the facts so relied on. This opinion
letter is given, and all statements herein are made, in the context of the
foregoing.
We call your attention to the fact that we have not
represented Xxxxxxxx Financial Inc., a borrower under the Credit Agreement, in
connection with any matter referred to in this letter or otherwise. We have not
made any review or investigation of factual, legal or other matters relative to
Xxxxxxxx Financial Inc. or the authority of Xxxxxxxx Financial Inc. with respect
to execution, delivery or performance of the Loan Documents. We understand that
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx has represented Xxxxxxxx Financial Inc. in
connection with the Loan Documents and has delivered an opinion to you on such
matters and other matters as provided in the Loan Documents.
For purposes of this opinion letter, we have assumed that (i)
each party to each of the Loan Documents has all requisite power and authority
under all applicable laws, regulations and governing documents to execute,
deliver and perform its obligations under each of the Loan
Documents and each of the parties to each of the Loan Documents other than the
Company has complied with all legal requirements pertaining to their status as
such status relates to their rights to enforce each of the Loan Documents
against the Company, (ii) each party to each of the Loan Documents has duly
authorized, executed and delivered the respective Loan Documents, (iii) each
party to each of the Loan Documents is validly existing and in good standing in
all necessary jurisdictions, (iv) each of the Loan Documents constitutes the
valid and binding obligation of each party thereto, enforceable against each
such party (except that this assumption is not made with respect to the Company)
in accordance with their respective terms, (v) there has been no mutual mistake
of fact or misunderstanding or fraud, duress or undue influence in connection
with the negotiation, execution or delivery of each of the Loan Documents, and
the conduct of all parties to each of the Loan Documents has complied with any
requirements of good faith, fair dealing and conscionability and (vi) there are
and have been no agreements or understandings among the parties, written or
oral, and there is and has been no usage of trade or course of prior dealing
among the parties that would, in either case, define, supplement or qualify the
terms of any of the Loan Documents. We have also assumed the validity and
constitutionality of each relevant statute, rule, regulation and agency action
covered by this opinion letter unless a reported decision of a federal court or
a court in the applicable jurisdiction has established its unconstitutionality
or invalidity.
For the purpose of the opinion set forth in Paragraph (b) below, we
have further assumed that (i) no Lender is a broker or dealer under the Margin
Regulations (as defined below); and (ii) Margin Stock does not constitute more
than 25% of the value (as determined pursuant to the Margin Regulations) of the
assets subject to the covenants in Sections 6.02 and 6.04 of the Credit
Agreement.
This opinion letter is based as to matters of law solely on applicable
provisions of the following, as currently in effect: (i) the New York General
Obligation Law; and (ii) as to the opinion given in Paragraph (b), Regulations
T, U and X issued by the Board of Governors of the Federal Reserve System (12
C.F.R. Parts 220, 221 and 224) (the "Margin Regulations").
Based upon, subject to and limited by the foregoing, we are of
the opinion that:
(a) Each of the Loan Documents constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
(b) The making of the Loans and the application of the
proceeds thereof by the Company as provided in the Credit Agreement will not
result in a violation of the Margin Regulations.
Our opinion expressed in Paragraph (a) above is subject to the
qualification that certain rights, remedies, obligations, waivers and other
provisions of each of the Loan Documents may not be enforceable in accordance
with their terms, but, subject to the exceptions,
qualifications and limitations set forth elsewhere in this opinion letter, such
unenforceability would not render any of the Loan Documents invalid as a whole
or preclude (i) the judicial enforcement of the obligations of the Company to
pay the principal and interest on the respective Loans at the rate or rates (but
not including any increase in rate after default) set forth in the Credit
Agreement, or (ii) in circumstances in which a court will provide a remedy, the
Lenders' right to accelerate and demand payment of the Loans made to the
Company.
In addition to the qualifications, exceptions and limitations
elsewhere set forth in this opinion letter, our opinions expressed above are
also subject to the effect of: (i) bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting creditors' rights (including,
without limitation, the effect of statutory and other law regarding fraudulent
conveyances, fraudulent transfers and preferential transfers); and (ii) the
exercise of judicial discretion and the application of principles of equity
including, without limitation, requirements of good faith, fair dealing,
reasonableness, conscionability and materiality (regardless of whether the
applicable agreements are considered in a proceeding in equity or at law).
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the closing under the
Credit Agreement on the date hereof, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm, except that your successors and assigns may rely upon this opinion
letter (it being understood that this opinion letter speaks only as of the date
hereof, and that no such reliance will have any effect on the scope, phrasing or
originally intended use of this opinion letter).
Very truly yours,
Schedule A
Citibank, X.X.
Xxxxx Fargo Bank West, N.A.
The Chase Manhattan Bank
The Board of Governors of the Bank of Ireland
Bank of New York
Credit Suisse First Boston
Firstar Bank N.A.
Fleet National Bank
HSBC
The Royal Bank of Scotland plc
State Street Bank and Trust Company
UMB, N.A.
Exhibit X-0
Xxxxxxxx 0, 0000
Xxxxxxxxxx listed on Schedule A
Re: Five-Year Competitive Advance and Revolving Credit Facility Agreement
Ladies and Gentlemen:
The undersigned serves as Assistant General Counsel to Janus
Capital Corporation, a Colorado corporation (the "Company"), and has represented
the Company in that capacity in connection with the Five-Year Competitive
Advance and Revolving Credit Facility Agreement, dated as of December 7, 2000
(the "Credit Agreement"), among the Company, Xxxxxxxx Financial Inc., Citibank,
N.A., individually, as Swingline Lender and as Administrative Agent, the Lenders
from time to time party thereto, Xxxxx Fargo Bank West, N.A., as Documentation
Agent, and The Chase Manhattan Bank, as Syndication Agent. This opinion letter
is being furnished to you pursuant to the requirements set forth in Section 4.02
of the Credit Agreement in connection with the closing thereunder on the date
hereof. Capitalized terms used herein which are defined in the Credit Agreement
shall have the meanings set forth in the Credit Agreement, unless otherwise
defined herein.
For purposes of this opinion letter, we have examined copies
of the following documents (the "Documents"):
1. An executed copy of the Credit Agreement.
2. Executed copies of promissory notes (the "Notes") by the Company in
favor of Firstar Bank N.A., Fleet National Bank and State Street
Bank and Trust Company (which are the only Lenders which
requested and received promissory notes from the Company).
3. The Restated and Amended Articles of Incorporation of the Company,
as certified by the Secretary of State of the State of Colorado
on November 15, 2000 and as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in
effect.
4. The Restated and Amended Bylaws of the Company as of January 5,
1996, as certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect.
5. A certificate of good standing of the Company issued by the
Secretary of State of the State of Colorado dated November 14,
2000.
6. Certain resolutions of the Board of Directors of the Company
adopted by unanimous written consent dated as of December 6,
2000, as certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect, relating to,
among other things, authorization of the Credit Agreement and
arrangements in connection therewith.
The Credit Agreement and the Notes are collectively referred
to herein as the "Loan Documents."
In my examination of the Credit Agreement and the other
Documents, I have assumed the genuineness of all signatures, the legal capacity
of all natural persons, the accuracy and completeness of all of the Documents,
the authenticity of all originals of the Documents and the conformity to
authentic originals of all of the Documents submitted to us as copies (including
telecopies). As to matters of fact relevant to the opinions expressed herein, I
have relied on the representations and statements of fact made in the Documents.
I have not independently established the facts so relied on. This opinion letter
is given, and all statements herein are made, in the context of the foregoing.
For purposes of this opinion letter, I have assumed that (i)
each of the parties to each of the Loan Documents (other than the Company) has
all requisite power and authority under all applicable laws, regulations and
governing documents to execute, deliver and perform its obligations under the
Loan Documents to which it is a party and each of such parties has complied with
all legal requirements pertaining to their status as such status relates to
their rights to enforce each of the Loan Documents to which it is a party
against the Company, (ii) each of such parties has duly authorized, executed and
delivered each of the Loan Documents to which it is a party, (iii) each of such
parties is validly existing and in good standing in all necessary jurisdictions,
(iv) each of the Loan Documents constitutes the valid and binding obligation of
each of the parties thereto, enforceable against each of such parties in
accordance with their respective terms, (v) there has been no mutual mistake of
fact or misunderstanding or fraud, duress or undue influence in connection with
the negotiation, execution or delivery of any of the Loan Documents, and the
conduct of each of the parties to each of the Loan Documents to which it is a
party has complied with any requirements of good faith, fair dealing and
conscionability and (vi) there are and have been no agreements or understandings
among the parties, written or oral, and there is and has been no usage of trade
or course of prior dealing among the parties that would, in either case, define,
supplement or qualify the terms of any of the Loan Documents. I
have also assumed the validity and constitutionality of each relevant statute,
rule, regulation and agency action covered by this opinion letter unless a
reported decision of a federal court or a court in the applicable jurisdiction
has established its unconstitutionality or invalidity.
For purposes of the opinions set forth in paragraphs (d) and
(e) below, I have made the following further assumptions: (i) that all orders,
judgments, decrees, agreements and contracts would be enforced as written; (ii)
that the Company will not in the future take any discretionary action (including
a decision not to act) permitted under any of the Loan Documents that would
result in a violation of law or constitute a breach or default under any order,
judgment, decree, agreement or contract; (iii) that the Company will obtain all
permits and governmental approvals required in the future, and take all actions
required, relevant to subsequent consummation of the transactions contemplated
under each of the Loan Documents or performance of each of the Loan Documents;
and (iv) that all parties to each of the Loan Documents will act in accordance
with, and will refrain from taking any action that is forbidden by, the terms
and conditions of such Loan Documents.
This opinion letter is based as to matters of law solely on
applicable provisions of the following, as currently in effect: (i) the
Investment Company Act of 1940, as amended, (ii) the Public Utility Holding
Company Act of 1935, as amended, (iii) Colorado law (but not including any
statutes, ordinances, administrative decisions, rules or regulations of any
political subdivision of the State of Colorado), and (iv) federal securities and
tax laws and regulations; except that I express no opinion as to antitrust,
unfair competition or banking laws or regulations and I express no opinion as to
any other laws, statutes, rules or regulations not specifically identified above
in clauses (i), (ii), (iii) and (iv); it being understood that, with respect to
clauses (iii) and (iv) above, the opinions expressed herein are based upon a
review of those laws, statutes and regulations that, in my experience, are
generally recognized as applicable to the transactions contemplated in the Loan
Documents.
Based upon, subject to and limited by the foregoing, we are of
the opinion that:
(a) Each of the Company and the Related Subsidiaries is
validly existing as a corporation and in good standing in the state or country
of incorporation and has all requisite authority to conduct their business in
each jurisdiction in which their business is conducted where the failure to do
so would have a Material Adverse Effect on the Company or any such Related
Subsidiary.
(b) The Company has the corporate power to execute, deliver
and perform each of the Loan Documents. The execution, delivery and performance
by the Company of each of the Loan Documents have been duly authorized by all
necessary corporate action of the Company.
(c) Each of the Loan Documents has been duly executed
and delivered on behalf of the Company.
(d) The execution, delivery and performance by the Company of
the Loan Documents do not (i) require any approval of the shareholders of the
Company or any Related Subsidiary, (ii) violate the Articles of Incorporation or
Bylaws of the Company or any Related Subsidiary, (iii) violate any provision of
any federal statute or regulation covered by this opinion letter or any Colorado
state statute or regulation covered by this opinion letter, (iv) violate any
court or administrative order, judgment or decree that names the Company or any
Related Subsidiary, (v) breach or constitute a default under any agreement or
contract to which the Company or any Related Subsidiary is a party, or (vi)
result in or require the creation or imposition of any Lien pursuant to the
provisions of any agreement or contract to which the Company or any Related
Subsidiary is a party.
(e) No approval or consent of, or registration or filing with,
any governmental agency is required to be obtained or made by the Company or any
Related Subsidiary in connection with the execution, delivery and performance by
the Company of the Loan Documents.
(f) There are no actions, suits or proceedings pending or
overtly threatened in writing against the Company or any Related Subsidiary, or
in which the Company or any Related Subsidiary is a party, before any court or
governmental department, commission, board, bureau, agency or instrumentality
that, if adversely determined, would materially adversely affect the business or
financial condition of the Company or any Related Subsidiary or the ability of
the Company to perform its obligations under any of the Loan Documents.
(g) Neither the Company nor any Related Subsidiary is (i) an
"investment company," as such term is defined in the Investment Company Act of
1940, as amended, or (ii) a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
In addition to the qualifications, exceptions and limitations
elsewhere set forth in this opinion letter, the opinions expressed above are
also subject to the effect of: (i) bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting creditors' rights (including,
without limitation, the effect of statutory and other law regarding fraudulent
conveyances, fraudulent transfers and preferential transfers); and (ii) the
exercise of judicial discretion and the application of principles of equity
including, without limitation, requirements of good faith, fair dealing,
reasonableness, conscionability and materiality (regardless of whether the
applicable agreements are considered in a proceeding in equity or at law).
I assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the closing under the
Credit Agreement on the date hereof, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without my prior written consent,
except that your successors and assigns may rely upon this opinion letter (it
being understood that this opinion letter speaks only as of the date hereof, and
that no such reliance will have any effect on the scope, phrasing or originally
intended use of this opinion letter).
Very truly yours,
Schedule A
Citibank, X.X.
Xxxxx Fargo Bank West, N.A.
The Chase Manhattan Bank
The Board of Governors of the Bank of Ireland
Bank of New York
Credit Suisse First Boston
Firstar Bank N.A.
Fleet National Bank
HSBC
The Royal Bank of Scotland plc
State Street Bank and Trust Company
UMB, N.A.
EXHIBIT D
[FORM OF]
COMPLIANCE CERTIFICATE
To: The Lenders party to the
Credit Agreement described below
care of
Citibank, N.A., as Agent
for the Lenders referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
This Compliance Certificate is furnished pursuant to the
Five-Year Credit Agreement dated as of December 7, 2000 (the "Agreement"), among
Xxxxxxxx Financial Inc. ("Xxxxxxxx"), Janus Capital Corporation, the Lenders
from time to time party thereto, Citibank, N.A., as Agent, Xxxxx Fargo Bank
West, N.A., as Documentation Agent, and The Chase Manhattan Bank, as Syndication
Agent. Unless otherwise defined herein, the terms used in this Compliance
Certificate have the meanings assigned to them in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected chief financial officer of Xxxxxxxx;
2. I have reviewed the terms of the Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrowers and the Subsidiaries during the
accounting period covered by the attached financial statements;
3. The form attached hereto sets forth financial data and
computations evidencing the Borrowers' and the Subsidiaries' compliance with
certain covenants of the Agreement, including Section 6.01(iv) and Section 6.07,
all of which data and computations are true, complete and correct; and
4. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event which
constitutes a Default or an Event of Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Compliance Certificate, except as set forth below:
[Describe the exceptions by listing, in detail, the nature of
the condition or event, the period during which it has existed
and the action which the Borrowers have taken, is taking, or
proposes to take with respect to each such condition or event]
The foregoing certifications, together with the computations
required by the Credit Agreement attached hereto and the financial statements
delivered with this Compliance Certificate in support hereof, are made and
delivered this day of , 20 .
-------------------------------------
Name:
Title:
EXHIBIT E
[Letterhead of Prospective Assignee or Participant]
[FORM OF]
CONFIDENTIALITY AGREEMENT
[Date]
Citibank, N.A., as Agent
for the Lenders referred to below
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Xxxxxxxx Financial Inc.
Janus Capital Corporation
Confidentiality Agreement
Dear Sirs:
In connection with our possible acquisition of an interest in
the credit facility (the "Facility") established by the Five-Year Credit
Agreement dated as of December 7, 2000, among the Borrowers as defined therein,
the lenders from time to time party thereto (the "Lenders"), Citibank, N.A., as
Agent, Xxxxx Fargo Bank West, N.A., as Documentation Agent, and The Chase
Manhattan Bank, as Syndication Agent, you, the Borrowers or any Lender may
furnish us with confidential documents, materials and information (the
"Information") relating to the Borrowers.
We agree to keep confidential and not to disclose (and to
cause our officers, directors, employees, agents, Affiliates and representatives
to keep confidential and not to disclose) and, at the request of you or the
Borrowers, promptly to return or destroy, the Information and all copies
thereof, extracts therefrom and analyses or other materials based thereon,
except that we shall be permitted to disclose Information (i) to such of our
officers, directors, employees, advisors, agents, Affiliates and representatives
as need to know such Information in connection with such acquisition; (ii) to
the extent required by applicable laws and regulations or by any subpoena or
similar legal process, or requested by any governmental agency or authority
having jurisdiction over us; (iii) to the extent such Information (A) becomes
publicly available other than as a result of a breach by us of this letter, (B)
is generated by us or becomes available to us on a nonconfidential basis from a
source other than you, the Borrowers or any Lender or (C) was available to us on
a nonconfidential basis prior to its disclosure to us by you, the Borrowers or
any Lender; or (iv) to the extent the Borrowers shall have consented in writing
to such disclosure.
Notwithstanding anything to the contrary contained above, we
shall be entitled to retain all Information to use for the administration of our
interests and the protection of our rights under the Facility.
The Borrower shall be a third party beneficiary of this
Agreement.
Very truly yours,
[Name of potential
participant/assignee]
by
---------------------------------
Name:
Title:
SCHEDULE 2.01
Commitments
-----------
Name of Lender Commitment
-------------- --------------
Citibank, N.A. $37,500,000
Xxxxx Fargo Bank West, N.A. $35,000,000
The Chase Manhattan Bank $37,500,000
Bank of America, N.A. $23,000,000
Bank of Ireland $5,000,000
Bank of New York $35,000,000
Credit Suisse First Boston $11,500,000
Firstar Bank, N.A. $23,000,000
Fleet National Bank $23,000,000
HSBC $11,500,000
The Royal Bank of Scotland $11,500,000
State Street Bank and Trust Company $35,000,000
UMB, N.A. $11,500,000
-----------
Total Commitment $300,000,000
XXXXXXXX FINANCIAL INC.
FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
SCHEDULE 3.08
LITIGATION
(See Section 3.08)
None
XXXXXXXX FINANCIAL INC.
FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
SCHEDULE 3.15
DIVIDEND RESTRICTIONS
(See Section 3.15)
None
XXXXXXXX FINANCIAL INC.
FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
SCHEDULE 6.01
INDEBTEDNESS
(See Section 6.01)
None
XXXXXXXX FINANCIAL INC.
FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
SCHEDULE 6.02
LIENS
(See Section 6.02)
None