EXHIBIT 10.1
EXECUTION COPY
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364-DAY
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of October 20, 2004
among
JANUS CAPITAL GROUP INC.,
THE LENDERS NAMED HEREIN,
JPMORGAN CHASE BANK, as Syndication Agent,
and
CITICORP USA, INC.,
as Administrative Agent and Swingline Lender,
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CITIGROUP GLOBAL MARKETS INC., as Advisor, Co-Arranger and Co-Book Manager
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as Co-Arranger and Co-Book Manager
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms..................................................................................... 1
SECTION 1.02. Terms Generally................................................................................... 17
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments....................................................................................... 17
SECTION 2.02. Loans............................................................................................. 18
SECTION 2.03. Competitive Bid Procedure......................................................................... 19
SECTION 2.04. Standby Borrowing Procedure....................................................................... 21
SECTION 2.05. Swingline Loans................................................................................... 22
SECTION 2.06. Interest Elections................................................................................ 23
SECTION 2.07. Fees ............................................................................................. 24
SECTION 2.08. Repayment of Loans; Evidence of Debt.............................................................. 25
SECTION 2.09. Interest on Loans................................................................................. 26
SECTION 2.10. Default Interest.................................................................................. 27
SECTION 2.11. Alternate Rate of Interest........................................................................ 27
SECTION 2.12. Termination, Reduction and Extension of Commitments............................................... 28
SECTION 2.13. Prepayment........................................................................................ 29
SECTION 2.14. Reserve Requirements; Change in Circumstances..................................................... 29
SECTION 2.15. Change in Legality................................................................................ 31
SECTION 2.16. Indemnity......................................................................................... 31
SECTION 2.17. Pro Rata Treatment................................................................................ 32
SECTION 2.18. Sharing of Setoffs................................................................................ 32
SECTION 2.19. Payments.......................................................................................... 33
SECTION 2.20. Taxes............................................................................................. 33
SECTION 2.21. Termination or Assignment of Commitments Under Certain
Circumstances............................................................................ 36
SECTION 2.22. Lending Offices and Lender Certificates; Survival of Indemnity.................................... 37
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Corporate Existence and Standing.................................................................. 37
SECTION 3.02. Authorization and Validity........................................................................ 37
SECTION 3.03. No Conflict; Governmental Consent................................................................. 37
SECTION 3.04. Compliance with Laws; Environmental and Safety Matters............................................ 38
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SECTION 3.05. Financial Statements.............................................................................. 38
SECTION 3.06. No Material Adverse Change........................................................................ 38
SECTION 3.07. Subsidiaries...................................................................................... 39
SECTION 3.08. Litigation; Contingent Obligations................................................................ 39
SECTION 3.09. Material Agreements............................................................................... 39
SECTION 3.10. Regulation U...................................................................................... 39
SECTION 3.11. Investment Company Act; Public Utility Holding Company Act........................................ 39
SECTION 3.12. Use of Proceeds................................................................................... 40
SECTION 3.13. Taxes............................................................................................. 40
SECTION 3.14. Accuracy of Information........................................................................... 40
SECTION 3.15. No Undisclosed Dividend Restrictions.............................................................. 40
ARTICLE IV
CONDITIONS
SECTION 4.01. All Borrowings and Extensions of Maturity Date.................................................... 40
SECTION 4.02. Conditions Precedent to Closing................................................................... 41
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Conduct of Business; Maintenance of Ownership of Subsidiaries
and Maintenance of Properties............................................................ 42
SECTION 5.02. Insurance......................................................................................... 43
SECTION 5.03. Compliance with Laws and Payment of Material Obligations and
Taxes.................................................................................... 43
SECTION 5.04. Financial Statements, Reports, etc................................................................ 43
SECTION 5.05. Other Notices..................................................................................... 44
SECTION 5.06. Books and Records; Access to Properties and Inspections........................................... 45
SECTION 5.07. Use of Proceeds................................................................................... 45
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness...................................................................................... 45
SECTION 6.02. Liens............................................................................................. 47
SECTION 6.03. Sale and Lease-Back Transactions.................................................................. 48
SECTION 6.04. Mergers, Consolidations and Transfers of Assets................................................... 49
SECTION 6.05. Transactions with Affiliates...................................................................... 49
SECTION 6.06. Certain Other Agreements.......................................................................... 49
SECTION 6.07. Certain Financial Covenants....................................................................... 50
SECTION 6.08. Margin Stock...................................................................................... 50
SECTION 6.09. Limitation on Investments in Capital Group Partners............................................... 51
SECTION 6.10. Conduct of Business of Capital Group Partners..................................................... 51
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ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE AGENT
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices........................................................................................... 56
SECTION 9.02. Survival of Agreement............................................................................. 57
SECTION 9.03. Binding Effect.................................................................................... 57
SECTION 9.04. Successors and Assigns............................................................................ 57
SECTION 9.05. Expenses; Indemnity............................................................................... 60
SECTION 9.06. Right of Setoff................................................................................... 62
SECTION 9.07. Applicable Law.................................................................................... 62
SECTION 9.08. Waivers; Amendment................................................................................ 62
SECTION 9.09. Interest Rate Limitation.......................................................................... 63
SECTION 9.10. Entire Agreement.................................................................................. 63
SECTION 9.11. Waiver of Jury Trial.............................................................................. 63
SECTION 9.12. Severability...................................................................................... 63
SECTION 9.13. Counterparts...................................................................................... 63
SECTION 9.14. Headings.......................................................................................... 63
SECTION 9.15. Jurisdiction; Consent to Service of Process....................................................... 64
SECTION 9.16. Confidentiality................................................................................... 64
SECTION 9.17. Electronic Communications......................................................................... 65
SECTION 9.18. USA Patriot Act................................................................................... 66
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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
Schedule 6.03 Sale - Leaseback Transactions
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 Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Exhibit C-2 Form of Opinion of Vice President of Corporate Affairs of the
Borrower
Exhibit D Form of Compliance Certificate
Exhibit E Form of Confidentiality Agreement
Exhibit F Form of LLC Guarantee
Exhibit G Form of Administrative Questionnaire
364-DAY COMPETITIVE ADVANCE AND REVOLVING CREDIT
FACILITY AGREEMENT dated as of October 20, 2004 (the
"Agreement"), among JANUS CAPITAL GROUP INC., a Delaware
corporation (the "Borrower"), the lenders party hereto (the
"Lenders"), CITICORP USA, INC., as Administrative Agent for
the Lenders (in such capacity, the "Agent") and as Swingline
Lender, and JPMORGAN CHASE BANK, as Syndication Agent for the
Lenders.
The Borrower has requested the Lenders to extend credit in order to
enable it 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 $200,000,000 at any time outstanding. The Borrower has 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 the Borrower.
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 the Borrower or its
subsidiaries, (b) to finance non-hostile acquisitions by the Borrower and (c) to
repay maturing commercial paper.
The Lenders are willing to extend such credit to the Borrower on the
terms and subject to the conditions herein set forth. Accordingly, the Borrower,
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 G.
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"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 2.07(c).
"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 and (b) 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. "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 Federal
Funds Effective Rate 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) of the
first sentence of this definition 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 or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"Applicable Rate" means, for any day, with respect to any Eurodollar
Standby Loan, or with respect to the Facility Fee or Utilization Fee payable
hereunder, the applicable rate per annum set forth below under the caption
"Eurodollar Spread", "Facility Fee Rate" or "Utilization Fee Rate", as the case
may be, based upon the ratings by ▇▇▇▇▇'▇ and S&P, respectively, applicable on
such day to the Index Debt:
Index Debt Ratings: Eurodollar Spread Facility Fee Rate Utilization Fee Rate
Category 1 .500% .100% .125%
A-/A3 or higher
Category 2 .625% .125% .125%
BBB+/Baa1
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Category 3 .750% .150% .250%
BBB/Baa2
Category 4 1.000% .200% .250%
BBB-/Baa3
Category 5 1.250% .325% .500%
lower than BBB-/Baa3 or unrated
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall not have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established a rating in Category 5; (ii) if the ratings
established or deemed to have been established by ▇▇▇▇▇'▇ and S&P for the Index
Debt shall fall within different Categories, the Applicable Rate shall be based
on the lower of the two ratings unless one of the two ratings is two or more
Categories above the other, in which case the Applicable Rate shall be
determined by reference to the Category one level above the Category
corresponding to the lower rating; and (iii) if the ratings established or
deemed to have been established by ▇▇▇▇▇'▇ and S&P for the Index Debt shall be
changed (other than as a result of a change in the rating system of ▇▇▇▇▇'▇ or
S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency, irrespective of when notice of such
change shall have been furnished by the Borrower to the Agent and the Lenders.
Each change in the Applicable Rate shall apply during the period commencing on
the effective date of such change and ending on the date immediately preceding
the effective date of the next such change. If the rating system of ▇▇▇▇▇'▇ or
S&P shall change, or if either such rating agency shall cease to be in the
business of rating corporate debt obligations, the Borrower and the Lenders
shall negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating of the other rating agency (or, if the
circumstances referred to in this sentence shall affect both rating agencies,
the ratings most recently in effect prior to such changes or cessations).
"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 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 the Borrower 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 the
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Borrower, 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.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrower" shall have the meaning assigned to such term in the
heading of this Agreement.
"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.
"Capital Group Partners" shall mean Capital Group Partners, Inc., a
wholly owned subsidiary of the Borrower.
"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 the Borrower
shall be (A) individuals who are members of such board on the date hereof or (B)
individuals whose election, or nomination for election by the Borrower's
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 the Borrower, shall
become, according to public announcement or filing, the "beneficial
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owner" (as defined in Rule 13d-3 issued under the Securities Exchange Act of
1934, as amended), directly or indirectly, of securities of the Borrower
representing 30% or more (calculated in accordance with such Rule 13d-3) of the
combined voting power of the Borrower's then outstanding voting securities.
"Citicorp" shall mean Citicorp USA, Inc.
"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 2.12 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. 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 $200,000,000.
"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 Lenders whose
Competitive Bids for such Borrowing have been accepted by the Borrower under the
bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the 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 Borrower dated September 2004.
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"Consolidated Adjusted Net Worth" shall mean, on any date, the
stockholders' equity of the Borrower and the Consolidated Subsidiaries on such
date, computed and consolidated in accordance with GAAP, minus "accumulated
other comprehensive income" as shown on the Borrower's 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 the Borrower 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 the Borrower 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 the Borrower and the Consolidated Subsidiaries on a consolidated basis for
such period, determined in accordance with GAAP, but without giving effect to
(a) any extraordinary gains, (b) any gains during such period relating to the
sale, transfer or other disposition of (i) any assets of the Borrower or any
subsidiary (other than in the ordinary course of business) or (ii) investments
in any subsidiary or Affiliate of the Borrower or the Consolidated Subsidiaries,
including, without limitation, DST Systems and Bay Isle Financial LLC, a
Delaware limited liability company, (c) any costs, expenses or losses incurred
during such period (which in the aggregate for all such periods shall not exceed
$200,000,000) consisting of or relating or attributable to (i) the sale,
transfer or other disposition, in whole or in part, of any subsidiary or
Affiliate of the Borrower or the Consolidated Subsidiaries, (ii) any exchange,
repayment, prepayment, purchase or redemption by the Borrower or any Subsidiary
of the outstanding Indebtedness of the Borrower, (iii) any fines, penalties,
damages, or restitution or other settlement payments related to regulatory
investigations into trading practices in the mutual fund industry and (iv) any
non-cash compensation expenses related to the amortization of restricted stock
grants of the Borrower and (d) any costs, expenses or losses incurred during
such period consisting of or relating or attributable to (i) settlement with and
payments to any taxation Governmental Authority in connection with the DST
Equity Exchange (such amounts under this clause (d)(i) not to exceed the amounts
held in or attributed to, from time to time, the Reserve Account) and (ii)
non-cash write-downs of good will and intangible assets.
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"Consolidated Net Loss" shall mean, for any period, the net loss of
the Borrower and the Consolidated Subsidiaries on a consolidated basis for such
period plus writeoffs of goodwill for such period (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 the Borrower 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 the Borrower in accordance with GAAP.
"Consolidated Total Indebtedness" shall mean at any date all
Indebtedness of the Borrower 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 the Borrower 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.
"Disclosed Matter" shall mean the existence or occurrence of any
matter which has been disclosed by the Borrower (i) on Schedule 3.08 hereto,
(ii) in any filing on Form 10-K, 10-Q or 8-K made with the Securities and
Exchange Commission prior to October 9, 2004, or (iii) in the Confidential
Memorandum; provided, that no matter shall constitute a "Disclosed Matter" to
the extent it shall prove to be, or shall become, materially more adverse to the
Borrower and the Subsidiaries taken as a whole or to the Lenders than it would
have reasonably appeared to be on the basis of the disclosure contained in any
of the documents referred to above in this definition.
"dollars" or "$" shall mean lawful money of the United States of
America.
"DST Equity Exchange" shall mean the exchange by the Borrower of
32,300,000 shares of the common stock of DST Systems owned by it for equity of
equal value of Capital Group Partners.
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"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 9.04, the Borrower 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 Borrower and the Swingline Lender, as applicable, not to be
unreasonably withheld or delayed; provided, however, that none of (1) the
Borrower, (2) any Affiliate of the 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 the Borrower and the 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
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for less than 25% of the aggregate value (as so determined) of all assets
subject to such Sections.
"Existing Credit Agreement" shall mean the Borrower's Competitive
Advance and Revolving Credit Facility Agreement dated as of December 7, 2000.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.07(a).
"Fee Letter" shall mean the letter agreement dated as of September
21, 2004, among the Borrower, the Agent and Citigroup Global Markets 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, assistant 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,
10
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.
"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 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.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Interest Election Request" shall have the meaning assigned to such
term in Section 2.06(b).
"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
with 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 to all the
Lenders, 9 or 12, months thereafter, as the Borrower may elect, (b) as to any
ABR Borrowing, the period
11
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 Capital Management LLC" shall mean Janus Capital Management
LLC, a Delaware limited liability company.
"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 the Borrower 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 the Borrower 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
12
annum at which dollar deposits are 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.
"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.
"LLC Guarantee" shall mean a Guarantee Agreement in the form of
Exhibit F hereto between Janus Capital Management LLC and the Agent.
"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, the Fee Letter (and the
commitment letter executed in connection therewith) and the LLC Guaranty.
"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 the Borrower and the Subsidiaries taken as a whole, (b) the ability
of the 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; provided that no
Disclosed Matter shall constitute a Material Adverse Effect.
"Maturity Date" shall mean October 19, 2005, or any later date to
which the Maturity Date shall have been extended as provided in Section 2.12(d).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
13
"Multiemployer Plan" shall mean a Plan that is a "multiemployer
plan" as defined in Section 4001(a)(3) of ERISA as to which the Borrower 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.
"Non-Extending Lender" shall have the meaning assigned to such term
in Section 2.12(d).
"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 Borrower 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 the Borrower 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 Transaction" 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 the
Borrower of 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, the Borrower or any Subsidiary (other than to such B Share
Purchaser, if it is a Finance Subsidiary) or recourse to any assets of the
Borrower or any Subsidiary; 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
the Borrower (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 the Borrower in the event of any bankruptcy, reorganization or
insolvency proceeding with respect to the Borrower,
14
(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 the Borrower 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 9.04.
"RCRA" shall mean the Resources Conservation and Recovery Act, as
the same may be amended from time to time.
"Reference Banks" shall mean Citicorp USA, Inc., JPMorgan Chase Bank
and ▇▇▇▇▇ Fargo Bank West, N.A.
"Register" shall have the meaning given such term in Section
9.04(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.
"Replacement Indebtedness" shall mean, in respect of any
Indebtedness ("Original Indebtedness"), Indebtedness extending the maturity of
or refunding, refinancing or replacing, in whole or in part, such Original
Indebtedness; provided that (i) the principal amount of such Replacement
Indebtedness shall not exceed the principal amount of such Original
Indebtedness; (ii) no Subsidiaries shall be liable for any such Replacement
Indebtedness that shall not have been liable for such Original Indebtedness;
(iii) if such Original Indebtedness shall have been subordinated to the
Obligations, such Replacement Indebtedness shall be subordinated to the
Obligations on terms not less favorable to the Lenders; (iv) such Replacement
Indebtedness shall not have a shorter maturity than such Original Indebtedness
or be subject to any requirement not applicable
15
to such Original Indebtedness that such Replacement Indebtedness be prepaid,
redeemed, repurchased or defeased on one or more scheduled dates or upon the
happening of one or more events (other than events of default or change of
control events) before the maturity of such Original Indebtedness; and (v) the
incurrence of any Replacement Indebtedness that refunds, refinances or replaces
Original Indebtedness under any revolving credit or similar facility shall be
accompanied by the termination of commitments under such facility equal in
amount to such Original Indebtedness.
"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.
"Reserve Account" shall mean an amount, determined from time to time
by the Borrower in its sole discretion (but not to exceed $430,000,000), held or
maintained by the Borrower as a contingency reserve in respect of any potential
or actual settlement with or payments to any taxation Governmental Authority in
connection with the DST Equity Exchange.
"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.
"S&P" means Standard & Poor's Ratings Service.
"Standby Borrowing" shall mean a borrowing consisting of
simultaneous Standby Loans from each of the Lenders.
16
"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 Sections 2.01 and 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 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.
"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 direct or indirect subsidiary of the
Borrower.
"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 Citicorp, in its capacity as lender of
Swingline Loans hereunder, or another Lender that has agreed to provide
Swingline Loans hereunder; provided that the Borrower shall have delivered to
the Agent a written notice that it has elected to replace Citicorp as Swingline
Lender (it being understood that there shall be only one Swingline Lender
hereunder at any time).
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"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
17
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
the Borrower 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 2.07(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 the Borrower's 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 Borrower 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 Borrower's
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 the 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
18
exceeding its Commitment, subject, however, to the condition that at no time
shall (a) the Revolving Credit Exposure of any Lender exceed such Lender's
Commitment or (b) the sum of the total Revolving Credit Exposures plus the
outstanding aggregate principal amount of all Competitive Loans exceed the Total
Commitment. Within the foregoing limits, the Borrower 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 (A) $5,000,000 in the case of Eurodollar Standby
Loans and (B) $1,000,000 in the case of ABR Loans (or, in each case, 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.
(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
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 the Borrower and the Swingline Lender pursuant to Section 2.09(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 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 the
Borrower shall not 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 2.06, 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
Borrower with the Agent or, if a Borrowing shall not occur on such date because
any condition precedent herein specified shall not
19
have been met, return the amounts so received to the respective Lenders;
provided that Swingline Loans shall be made as provided in Section 2.05.
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
2.17. 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 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 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 the Borrower until the date such
amount is repaid to the Agent at (i) in the case of the 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, the
Borrower shall not 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 Borrower shall hand deliver 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 Borrower of such rejection
by 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 not be
20
made in an aggregate principal amount outstanding at any time greater than the
Total Commitment minus the Revolving Credit Exposures at such time.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the 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 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 Borrower) of the Competitive Loan or Loans that the
Lender is willing to make to the 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 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 the Borrower for its records as soon as practicable after
completion of the bidding process set forth in this Section 2.03.
(d) The 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 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 the Borrower to give such
notice shall be deemed to be a rejection of all the bids referred to in
paragraph (c) above, (ii) the
21
Borrower shall not accept a bid made at a particular Competitive Bid Rate if it
has decided to reject a bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the 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 the 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 the
Borrower to exceed the amount specified in the Competitive Bid Request, then the
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
the Borrower. A notice given by the 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 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 9.01.
SECTION 2.04. Standby Borrowing Procedure. In order to request a
Standby Borrowing, the 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
22
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 Borrower shall be deemed to
have selected an Interest Period of one month's duration. If the 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 the 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. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower 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
$40,000,000 or (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. Each Swingline Loan shall bear interest at a rate
described in Section 2.09(d). Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, repay and
reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower 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 the Borrower. The Swingline Lender shall
make each Swingline Loan available to the Borrower by wire transfer of
immediately available funds to account number 4945027308 maintained by the
Borrower with ▇▇▇▇▇ Fargo Bank (ABA ▇▇▇▇▇▇▇▇▇) by 6:00 p.m., New York City time,
on the requested date of such Swingline Loan. The Borrower 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.
23
(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 the Borrower 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 the Borrower (or other party on behalf of the Borrower) 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
the Borrower of any default in the payment thereof.
SECTION 2.06. Interest Elections. (a) Each Standby Borrowing
initially shall be of the Type specified in the applicable Standby Borrowing
Request and, in the case of a Eurodollar Standby Borrowing, shall have an
initial Interest Period as specified in such Standby Borrowing Request.
Thereafter, the 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 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 Borrower shall
notify the Agent of such election (each, an "Interest Election Request") by
telephone by the time that a Standby Borrowing Request would be required under
Section 2.04 if the
24
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 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 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 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 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 2.07. Fees. (a) The Borrower agrees to pay to each Lender,
through the Agent, a facility fee (a "Facility Fee") at a rate per annum equal
to the Applicable Rate 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
25
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 first day of January, April, July and October 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
shall be greater than 33% of the Total Commitment under this Agreement, the
Borrower shall pay to the Agent for the account of each Lender a utilization fee
(a "Utilization Fee") equal to the Applicable Rate on the aggregate amount of
each Lender's outstanding Loans to the Borrower on such day. The accrued
Utilization Fees, if any, shall be payable in arrears on the first day of
January, April, July and October of each year 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) The Borrower agrees to pay the Agent, for its own account, the
fees (the "Agent's Fees") at the times and in the amounts agreed by the Borrower
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 2.08. Repayment of Loans; Evidence of Debt. (a) The 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
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. The Borrower 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, the Borrower shall repay all Swingline Loans then
outstanding.
(b) 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 to such Lender from time to time under
this Agreement. The Agent
26
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 the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Agent hereunder from the Borrower and each
Lender's share thereof. The entries made in the accounts maintained pursuant to
this Section 2.08 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 the Borrower to repay the Loans in accordance with their terms or (ii) cause
the Borrower's 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 the Borrower be
evidenced by a promissory note of the Borrower. In such event, the 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 9.04) 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 2.09. Interest on Loans. (a) Subject to the provisions of
Section 2.10, 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 Rate, 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 Borrower pursuant to Section 2.03. Interest on each Eurodollar Borrowing
shall be payable on each applicable Interest Payment Date. Each Reference Bank
agrees upon the request of the Agent 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.
(b) Subject to the provisions of Section 2.10, 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.
(c) Subject to the provisions of Section 2.10, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days
27
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 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 2.10, 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 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, if the Required Lenders shall so determine, (i) each outstanding
Eurodollar Borrowing will, 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 2.10. Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on (a) the
unpaid principal amount of each of its Standby Borrowings and each Swingline
Borrowing, payable in arrears on the dates referred to in Section 2.09, 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 2.09(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 365 or 366 days, as
the case may be) equal at all times to 2% per annum above the rate per annum
required to be paid on ABR Borrowings pursuant to Section 2.09(b).
SECTION 2.11. 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 Borrower and the Lenders. In the event of any such
determination, until the Agent shall have advised the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any
request by the 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 the Borrower for a Eurodollar Standby Borrowing pursuant
to Section 2.04 shall be deemed to be a request for an
28
ABR Borrowing. In the event of any such determination, the Lenders shall
negotiate with the Borrower, at its 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 2.09(b) pending the execution by the
Borrower 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 2.12. Termination, Reduction and Extension of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the
Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, without penalty but
subject to Section 2.16, 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 2.13, the sum of the
Revolving Credit Exposures plus the aggregate outstanding principal amount of
the Competitive Loans would exceed the Total Commitment.
(c) Each reduction in the Total Commitment hereunder shall be made
ratably among the Lenders in accordance with their respective Commitments. The
Borrower 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.
(d) The Borrower may, by notice to the Agent (which shall promptly
deliver a copy to each of the Lenders) given not less than 45 days and not more
than 60 days prior to the Maturity Date in effect at such time, request that the
Lenders extend the Maturity Date for an additional period of not more than 364
days (each, an "Additional Period") as specified in such notice. Each Lender
shall, by notice to the Borrower and the Agent given not earlier than the 30th
day and not later than the 20th day (or such later day as shall be acceptable to
the Borrower) prior to the Maturity Date then in effect, advise the Borrower
whether or not it agrees to such extension. Any Lender that has not so advised
the Borrower and the Agent by such day shall be deemed to have declined to agree
to such extension. If the Borrower shall have requested and Lenders representing
more than 50% of the Total Commitment shall have agreed to an extension of the
Maturity Date, then the Maturity Date shall be extended for such Additional
Period and on the terms specified in the Borrower's notice, and the Agent shall
promptly notify each Lender of such extension. The decision to agree or withhold
agreement to any extension of the Maturity Date hereunder shall be at the sole
discretion of each Lender. The Commitment of any Lender that has declined, or is
deemed to have declined, to agree to any requested extension of the Maturity
Date (a "Non-Extending Lender") shall terminate on the Maturity Date in effect
prior to giving effect to any such extension (the "Existing Maturity Date"), and
the principal amount of any outstanding Loans made by such Lender, together with
any accrued interest thereon, and any accrued
29
fees and other amounts payable to or for the account of such Lender hereunder,
shall be due and payable on the Existing Maturity Date. Notwithstanding the
foregoing provisions of this paragraph, (i) the Borrower shall have the right,
pursuant to Section 2.21, to replace a Non-Extending Lender (up to the full
amount of the Commitment of such Non-Extending Lender, or any portion thereof)
with a Lender or other financial institution that will agree to an extension of
the Maturity Date for such Additional Period and (ii) the Borrower shall have
the right, any time prior to the Existing Maturity Date, to withdraw its request
for an extension under this paragraph by notice to the Agent (which shall
promptly deliver a notice to each Lender), in which case the Commitments of all
the Lenders will terminate on the Existing Maturity Date.
SECTION 2.13. Prepayment. (a) The Borrower shall have the right at
any time and from time to time to prepay, without penalty but subject to Section
2.16, 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 (A) $5,000,000 in
the case of a Eurodollar Standby Borrowing and (B) $1,000,000 in the case of an
ABR Borrowing or, if less, the aggregate principal amount of such Standby
Borrowing. The Borrower shall not have the right to prepay any Competitive
Borrowing.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.12, the Borrower shall pay or prepay so much of the
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
Borrower shall repay or prepay all the outstanding Standby Loans and 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 Borrower to prepay such Borrowing (or
portion thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section 2.13 shall be subject to Section 2.16 but shall
otherwise be without premium or penalty. All prepayments under this Section 2.13
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of payment.
SECTION 2.14. 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
30
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 (whether of principal,
interest or otherwise) by an amount reasonably deemed by such Lender to be
material, then the 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 Governmental 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 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
31
invalidity or inapplicability of the law, rule, regulation, guideline or other
change or condition which shall have occurred or been imposed.
SECTION 2.15. 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 Borrower 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 the 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 Borrower, at its request, as to the interest rate which such ABR Loans shall
bear; provided that such Loans shall bear interest as provided in Section
2.09(b) pending the execution by the Borrower and such Lender of a written
agreement providing for a different interest rate.
(b) For purposes of this Section 2.15, a notice to the 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
Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss (other than loss of profits) or expense which such Lender may
sustain or incur as a consequence of (a) any failure by the Borrower to fulfill
on the date of any borrowing hereunder the applicable conditions set forth in
Article IV, (b) any failure by the Borrower to borrow or to refinance or
continue any Loan 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, 2.04 or 2.06, (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
32
prepayment by the Borrower of the principal amount of any Loan 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,
including, in each such case, any loss (other than loss of profits) 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 2.17. Pro Rata Treatment. Except as required under Section
2.12(d) or Section 2.15, 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 they relate to any Competitive Borrowing
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 2.18. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the 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,
33
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 of such Lender 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
2.18 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. The 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 the Borrower to such Lender by reason thereof as fully as if such Lender had
made a Standby Loan or Swingline Loan directly to the Borrower in the amount of
such participation.
SECTION 2.19. Payments. (a) The 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 2.05(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
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ABA 021 00 00 89, Account No.
▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ Quezon, 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 2.20. Taxes. (a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.19, 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
34
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 the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
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 2.20) 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) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law.
(b) In addition, the 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) The 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 2.20)
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 Borrower of the availability of such refund and shall,
within 30 days after receipt of a request by the Borrower, apply for such refund
at the 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 the Borrower hereunder it
shall promptly notify the Borrower of such refund and shall, within 30 days
after receipt of a request by the Borrower (or promptly upon receipt, if the
Borrower has requested application for such refund pursuant hereto), repay such
refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.20 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 the 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. This Section 2.20
shall not be construed to require the Agent or any Lender to make available
35
its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Lender (or
Transferee) or the Agent, the Borrower will furnish to the Agent, at its address
referred to in Section 9.01, 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 2.20
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 Borrower 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 Borrower and is not a controlled foreign corporation related to the
Borrower (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 (or Transferee) organized outside the United
States shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Lender (or Transferee). Notwithstanding
any other provision of this Section 2.20(f), a Lender (or Transferee) organized
outside the United States shall not be required to deliver any form pursuant to
this Section 2.20(f) that it is not legally able to deliver. Unless the Borrower
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 Borrower 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) The Borrower shall not 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
36
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 hereof (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
Borrower; provided, however, the 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 2.20 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
requested by the 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 2.21. 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 2.02(c) or any Lender shall have delivered a notice
or certificate pursuant to Section 2.14 or Section 2.15, or the Borrower shall
be required to make additional payments to any Lender under Section 2.20, or any
Lender shall be a Non-Extending Lender pursuant to Section 2.12(d), and provided
that no Default or Event of Default shall have occurred and be continuing, the
Borrower shall have the right, at its 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 9.04)
all its interests, rights and obligations under this Agreement (except in the
case of a Non-Extending Lender, such transfer or assignment may be up to the
full amount of the Commitment of such Non-Extending Lender or any portion
thereof) 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 Borrower 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) 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 (which consent will not be unreasonably withheld)
and the Borrower 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).
37
SECTION 2.22. 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 the Borrower to such Lender under Section 2.14
or to avoid the unavailability of Eurodollar Loans under Section 2.11 or 2.15,
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 2.14 or 2.16 shall be final,
conclusive and binding on the Borrower in the absence of manifest error. The
amount specified in any such certificate shall be payable on demand after
receipt by the Borrower of such certificate. The obligations of the Borrower
under Sections 2.14 and 2.16 shall survive the payment of all amounts due under
any Loan Document and the termination of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as to itself and its
subsidiaries to each of the Lenders that:
SECTION 3.01. Corporate Existence and Standing. The 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.
SECTION 3.02. Authorization and Validity. The 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 the Borrower enforceable against the 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 the Borrower or any of its subsidiaries
or the 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 the 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 the 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
38
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) The Borrower and each of its subsidiaries has, to the best
knowledge and belief of the 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, except to the extent that the failure to comply
therewith could not, in the aggregate, be reasonably expected to have a Material
Adverse Effect.
(a) The 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 the
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. The 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. The 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 the
Borrower or any subsidiary which could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.05. Financial Statements. The Borrower has heretofore
furnished to the Lenders its (a) consolidated balance sheet and statements of
income, changes in stockholders' equity and cash flows as of and for the fiscal
year ended December 31, 2003, audited by and accompanied by the opinion of
Deloitte & Touche LLP, 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, 2004, certified by its chief
financial officer. Such financial statements present fairly the financial
condition and results of operations of the Borrower 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 the
Borrower 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. Except for any Disclosed
Matter, no material adverse change in the business, properties, financial
condition,
39
prospects or results of operations of the Borrower and the Consolidated
Subsidiaries has occurred since December 31, 2003. It is understood that
downgrades or negative pronouncements by rating agencies and volatility in the
capital markets generally shall not in and of themselves be considered material
adverse changes, but that the antecedents or consequences thereof may constitute
such changes (except to the extent the same constitute Disclosed Matters).
SECTION 3.07. Subsidiaries. Schedule 3.07 contains an accurate list
of all the (a) significant joint ventures and (b) Subsidiaries 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 interests held by the Borrower or other Subsidiaries.
SECTION 3.08. Litigation; Contingent Obligations. Except for any
Disclosed Matter, (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 the Borrower or any Consolidated
Subsidiary that (i) is required to be disclosed and has not been so disclosed in
any filing with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, or (ii) could reasonably be
expected to have a Material Adverse Effect and (b) neither the Borrower nor any
Consolidated Subsidiary has any material contingent obligations.
SECTION 3.09. Material Agreements. Neither the Borrower nor any
Subsidiary is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in (a) any agreement to which
it is a party, which default could reasonably be expected to have a Material
Adverse Effect or (b) any agreement or instrument evidencing or governing
Indebtedness which default would result in an Event of Default under clause (f)
of Article VII.
SECTION 3.10. Regulation U. (a) Margin Stock constitutes less than
25% of those assets of the Borrower and its subsidiaries that are subject to any
limitation on sale or pledge hereunder.
(b) As of the date hereof, the only Margin Stock owned by the
Borrower or any of its Subsidiaries is 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 the Borrower nor any Subsidiary is an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(b) Neither the Borrower nor any 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.
40
SECTION 3.12. Use of Proceeds. The Borrower will use the proceeds of
the Loans only for the purposes set forth in the recitals to this Agreement.
SECTION 3.13. Taxes. The 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 the Borrower or any Subsidiary, including without
limitation all federal and state withholding taxes and all taxes required to be
paid pursuant to applicable law, except (i) such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided or
(ii) where any failure to file or pay could not reasonably be expected to have a
Material Adverse Effect. The charges, accruals and reserves on the books of the
Borrower and the Consolidated Subsidiaries in respect of any taxes or other
governmental charges are adequate.
SECTION 3.14. Accuracy of Information. As of the date hereof, no
information, exhibit or report, taken as a whole, furnished by the Borrower or
any Subsidiary 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; provided, that all financial projections, if any, that
have been prepared by the Borrower and made available to the Agent, any Lender
or any potential Lender have been prepared in good faith based upon assumptions
believed by the management of the Borrower to be reasonable at the time of
preparation (it being understood such projections are subject to significant
uncertainties and contingencies, many of which are beyond the Borrower's
control, and that no assurance can be given that the projections will be
realized).
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) restricts the ability of such
entity to declare or pay dividends.
ARTICLE IV
CONDITIONS
The obligations of the Lenders to make Loans hereunder are subject
to the satisfaction of the following conditions under Sections 4.01 and 4.02,
and the obligations of the Lenders with respect to extensions of the Maturity
Date pursuant to Section 2.12(d) are subject to the satisfaction of the
following conditions in Section 4.01:
SECTION 4.01. All Borrowings and Extensions of Maturity Date. On the
date of each Borrowing and on each date on which the Maturity Date is to be
extended (which date shall be deemed to be the Existing Maturity Date, as
defined in Section 2.12(d)):
(a) In the case of a Borrowing, the Agent (or in the case of a
41
Swingline Loan, the Swingline Lender and the Agent) shall have
received a notice of such Borrowing as required by Section 2.03, 2.04
or 2.05, as applicable
(b) In the case of an extension of the Maturity Date, the
provisions of Section 2.12(d) shall have been complied with.
(c) The representations and warranties set forth in Article III
hereof and in Section 7 of the LLC Guaranty shall be true and correct
in all material respects on and as of the date of, and after giving
effect to, such Borrowing or extension, 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 (it being understood that this Section 4.01(c) shall not apply to
or in connection with any Interest Election Request).
(d) At the time of and immediately after such Borrowing or
extension, as applicable, no Event of Default or Default shall have
occurred and be continuing.
Each Borrowing or extension of the Maturity Date shall be deemed to constitute a
representation and warranty by the Borrower on the date of such Borrowing or
extension as to the matters specified in paragraphs (c) and (d) of this Section
4.01.
SECTION 4.02. Conditions Precedent to Closing. On the date hereof:
(a) The Agent (or its counsel) shall have received either (i) a
counterpart of this Agreement and of the LLC Guarantee signed on
behalf of each party thereto, or (ii) written evidence satisfactory to
the Agent (which may include telecopy transmissions of signed
signature pages) that this Agreement and of the LLC Guarantee have
been signed on behalf of each party thereto.
(b) The Agent shall have received a favorable written opinion of
(i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Borrower,
to the effect and covering those matters set forth in Exhibit C-1
hereto, and (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President of Corporate Affairs
of the Borrower, to the effect and covering those matters set forth in
Exhibit C-2 hereto. The Borrower hereby instructs its counsel to
deliver such opinions to the Agent.
(c) All legal matters incidental to this Agreement and the
Borrowings hereunder shall be satisfactory to the Lenders and to
Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Agent.
(d) The Agent shall have received such documents and certificates
as the Agent or its counsel shall reasonably have requested relating
to the organization, existence and good standing of the Borrower and
Janus Capital Management LLC, the authorization of the Transactions
and any other legal matters relating to the Borrower, Janus Capital
Management LLC, this
42
Agreement or the Transactions, all in form and substance satisfactory
to the Agent and its counsel.
(e) The Agent shall have received a certificate, dated the date
hereof and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (c)
and (d) of Section 4.01.
(f) The Agent shall have received all Fees and other amounts due
and payable on or prior to the date hereof.
(g) The Agent shall have received evidence satisfactory to it
that the commitments under the Existing Credit Agreement shall have
been terminated and all amounts outstanding thereunder, including any
fees, shall have been paid in full.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender with respect to
itself and the Subsidiaries that, until the Commitments have expired or been
terminated and the principal of or interest on each Loan, all Fees or all 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) The Borrower will, and will
cause each 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; provided that no sale, transfer or disposition of assets
(including by means of a merger) permitted under Sections 6.03, 6.04 and 6.05
will be prohibited by this paragraph (a).
(b) The Borrower will, and will cause each Subsidiary 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, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect or in connection with a
dissolution, merger, or disposition of a Subsidiary permitted under Section
6.04.
(c) The Borrower will at all times own, directly or indirectly, all
the outstanding voting securities or membership interests, as appropriate, of
each of Capital Group Partners and Janus Capital Management LLC, in each case
free and clear of any Liens on such securities or interests.
(d) The Borrower will, and will cause each Subsidiary to, do all
things necessary to maintain, preserve, protect and keep their properties
material to the conduct
43
of their businesses 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;
provided that no sale, transfer or disposition of assets (including by means of
a merger) permitted under Sections 6.03, 6.04 and 6.05 will be prohibited by
this paragraph (d).
SECTION 5.02. Insurance. The Borrower will, and will cause each
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 the Borrower will (or will cause each 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) The Borrower will, and will cause each 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 if
noncompliance therewith could reasonably be expected to have a Material Adverse
Effect.
(b) The Borrower will, and will cause each 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 (i) those
which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves have been set aside or (ii) where any failure
to pay could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.04. Financial Statements, Reports, etc. The Borrower will
maintain, for itself and each Subsidiary, a system of accounting established and
administered in accordance with GAAP and will furnish to the Agent and each
Lender:
(a) within 90 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 the Borrower's 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) within 45 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, and 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;
44
(c) together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit D signed
by the Borrower's 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 the Borrower knows 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) the 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 the
Borrower, describing such Reportable Event, Withdrawal Liability or
notice and the action which the Borrower proposes to take with respect
thereto;
(e) promptly upon the furnishing thereof to the shareholders of
the 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 the Borrower 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 the Borrower to
perform its obligations under the Loan Documents; and
(g) such other information (including financial information) as
the Agent or any Lender may from time to time reasonably request.
The financial statements required to be delivered by the Borrower pursuant to
Section 5.04(a) and (b) and the reports and statements required to be delivered
by the Borrower pursuant to Section 5.04(e) and (f) shall be deemed to have been
delivered (i) when reports containing such financial statements or other
materials are posted on the Borrower's website on the internet at
▇▇▇▇://▇▇.▇▇▇▇▇.▇▇▇ (or any successor page identified in a notice given to the
Agent and the Lenders) or on the SEC's website on the internet at ▇▇▇.▇▇▇.▇▇▇
and the Borrower has notified the Agent (who in turn shall notify the Lenders)
that such reports have been so posted or (ii) when such financial statements,
reports or statements are delivered in accordance with Section 9.17(a).
SECTION 5.05. Other Notices. Promptly and in any event within five
Business Days after a Responsible Officer of the Borrower becomes aware thereof,
the Borrower will, and will cause each Subsidiary to, give notice in writing to
the Lenders of the occurrence of any Default or Event of Default and of any
other development,
45
financial or otherwise, which could reasonably be expected to result in a
Material Adverse Effect.
SECTION 5.06. Books and Records; Access to Properties and
Inspections. The Borrower will, and will cause each 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. The
Borrower will, and will cause each Subsidiary to, permit the Agent and the
Lenders to make reasonable inspections of the properties, corporate books and
financial records of the Borrower and each Subsidiary, to make reasonable
examinations and copies of the books of accounts and other financial records of
the Borrower and each Subsidiary, and to discuss the affairs, finances and
accounts of the Borrower and each Subsidiary with, and to be advised as to the
same by, their respective officers 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. The Borrower will use the proceeds of
the Loans for the purposes set forth in the recitals to this Agreement.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender with respect to
itself and the Subsidiaries that, until the Commitments have expired or been
terminated and the principal of or interest on each Loan, all Fees or all 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) The Borrower will not and will not
permit any 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 (and any Replacement Indebtedness in respect
thereof), which Indebtedness or Replacement Indebtedness is secured solely
by a Lien on the assets being acquired; provided that the amount of such
Indebtedness or Replacement Indebtedness does not exceed such purchase
price and such Indebtedness or Replacement Indebtedness would not cause a
Default or an Event of Default under any other Section of this Agreement;
46
(iii) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any Subsidiary (including $445,000,000 of
the Borrower's 6.119% Senior Notes due 2014 held by Capital Group Partners
on the date hereof for so long as such Notes continue to be held by
Capital Group Partners or any other wholly-owned Subsidiary of the
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 not in excess of $10,000,000;
(v) Indebtedness under the Loan Documents;
(vi) Indebtedness of the Borrower 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 the Borrower in respect of Permitted B Share
True Sale Transactions;
(viii) Permitted Subordinated Debt; provided that the Borrower shall
have delivered to the Agent a copy of all documentation relating to such
Permitted Subordinated Debt;
(ix) Guarantees of the Obligations in favor of the Agent and the
Lenders as required under paragraph (b) below;
(x) other Indebtedness of the Borrower and the Subsidiaries that is
not secured by any Lien in an aggregate principal amount at any time
outstanding that does not exceed $378,200,000 minus the aggregate
principal amount of any Indebtedness outstanding under this paragraph that
shall have been repaid, prepaid, redeemed, purchased, refinanced, replaced
or defeased by the Borrower or any Subsidiary, including any such
Indebtedness originally owed to third parties and purchased by the
Borrower or any Subsidiary (other, in each case, than Indebtedness repaid,
prepaid, redeemed, purchased, refinanced, replaced or defeased with the
proceeds of new Indebtedness issued for the specific purpose of providing
funds for any such repayment, prepayment, redemption, purchase,
refinancing, replacement or defeasance); provided that with respect to any
such Indebtedness issued or incurred to extend, renew, refinance or
replace existing Indebtedness, (A) the principal thereof is not by its
terms required to be repaid, prepaid, redeemed, purchased or defeased, in
whole or in part, at the option of any holder thereof or on any date prior
to the Maturity Date and (B) no Subsidiary shall be liable for any such
Indebtedness that shall not have been liable for such existing
Indebtedness; provided further that the incurrence of such Indebtedness
would not cause a Default or an Event of Default under any other Section
of this Agreement;
(xi) Indebtedness deemed to exist in connection with any
Sale-Leaseback Transaction permitted pursuant to Section 6.03;
47
(xii) Indebtedness under repurchase agreements or reverse repurchase
agreements secured by Liens permitted pursuant to Section 6.02(j); and
(xiii) Indebtedness of a Person existing at the time such Person
becomes a Subsidiary and any Replacement Indebtedness in respect thereof;
provided, that such Indebtedness was not created in contemplation of such
Person becoming a Subsidiary.
(b) The Borrower will not permit (i) any Subsidiary to Guarantee any
Indebtedness of the Borrower or (ii) any Subsidiary to Guarantee any
Indebtedness Guaranteed by the Borrower, unless, in the case of each of the
preceding clauses (i) and (ii), (A) the Indebtedness which is the subject of
such Guaranty could have been incurred directly by such Subsidiary pursuant to
clause (a)(ii) or (a)(iv) above or (B) prior thereto such 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. The Borrower will not, nor will it permit any
Subsidiary to, create, incur, or suffer to exist any Lien in or on its property
(now or hereafter acquired), or on any income or revenues or rights in respect
of any thereof, 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 the Borrower or the Subsidiaries;
(e) Liens existing on the date hereof and described in Schedule 6.02
hereto and Liens extending or replacing such Liens; provided that such
Liens (including any such extension or replacement Liens) shall secure
only those obligations that they secure on the date hereof and Replacement
Indebtedness in respect thereof and shall encumber only the assets that
they
48
encumber 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) any Lien on Excess Margin Stock;
(h) 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 the Borrower and the Subsidiaries;
(i) Environmental Liens securing clean-up costs or fines not in
excess of $25,000,000 in aggregate principal amount, excluding
Environmental Liens that are being contested in good faith by appropriate
proceedings and the enforcement of which is stayed;
(j) Liens deemed to exist in connection with repurchase agreements
or reverse repurchase agreements entered into by the Borrower or any
Subsidiary in connection with the short-term investment of available cash;
(k) judgment Liens in respect of judgments that have not resulted in
an Event of Default under clause (i) of Article VII hereof; and
(l) any Lien existing on any property before the acquisition thereof
or existing on any property of any Person that becomes a Subsidiary after
the date hereof before the time such Person becomes a Subsidiary and Liens
extending or replacing such Liens; provided that (a) no such Lien is
created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (b) no such Lien shall
apply to any other property and (c) no such Lien shall secure obligations
other than those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary and Replacement
Indebtedness in respect thereof, as the case may be.
SECTION 6.03. Sale and Lease-Back Transactions. The Borrower will
not, and will not permit any 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 that the
Borrower or any 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
49
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 the Borrower and the Subsidiaries
(other than Sale and Leaseback Transactions consummated prior to October 20,
2004, and set forth on Schedule 6.03), when taken together with the aggregate
principal amount of Indebtedness of the Borrower and the Subsidiaries
outstanding pursuant to Section 6.01(a)(iv) 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.
SECTION 6.04. Mergers, Consolidations and Transfers of Assets. The
Borrower will not, and will not permit any 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
Subsidiary, except that (a) the Borrower and any Subsidiary may sell assets in
the ordinary course of business, (b) the Borrower 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 the Borrower in a transaction in which the Borrower 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 the
Borrower or a wholly owned Subsidiary receives any consideration, (iii) the
Borrower and the Subsidiaries may sell, transfer, lease or dispose of the assets
of or any ownership interests (including options) held in a certain two entities
identified to the Lenders on the date hereof and (iv) the Borrower and the
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 do not exceed 10% of Consolidated Net Worth on any date of
determination to any other person.
SECTION 6.05. Transactions with Affiliates. The Borrower will not,
and will not permit any 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 Borrower or
any Subsidiary), except that the Borrower or any 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 the
Borrower or such Subsidiary than would prevail in an arm's-length transaction
with unrelated third parties.
SECTION 6.06. Certain Other Agreements. The Borrower will not, and
will not permit any 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 Subsidiary to declare and pay
dividends or make any loans or advances or any other distribution to the
Borrower (except for limitations on the payment of dividends set forth in
Schedule 3.15 or imposed by applicable law; or (ii) be bound by
50
or enter into any agreement, indenture, contract, instrument, amendment or lease
containing any covenant restricting the incurrence of Indebtedness or governing
the Borrower's and the Subsidiaries' financial condition if such covenant is
more restrictive than the analogous provision of this Agreement unless (A) the
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 Borrower enters 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;
provided, that the foregoing shall not apply to prohibitions, restrictions and
conditions contained in agreements relating (x) to secured Indebtedness
permitted hereunder, if such prohibitions, restrictions and conditions apply
only to (1) assets other than cash securing such Indebtedness or (2) cash in an
amount not greater than the principal amount of such Indebtedness that has been
deposited in a collateral or similar account to cash collateralize such
Indebtedness or (y) to the sale of a Subsidiary or any assets pending such sale,
if such prohibitions, restrictions and conditions apply only to the Subsidiary
or asset that is to be sold and such sale is permitted hereunder.
SECTION 6.07. Certain Financial Covenants. The Borrower will not:
(a) permit the Leverage Ratio on any date to be in excess of 2.00
to 1.00.
(b) permit the Fixed Charge Ratio to be less than 4.00 to 1.00 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; and
(d) permit Consolidated Adjusted Net Worth to be less than
$1,500,000,000 at any time.
SECTION 6.08. Margin Stock. (a) The Borrower will not, nor will it
permit any Subsidiary to, purchase or otherwise acquire Margin Stock if, after
giving effect to any such purchase or acquisition, Margin Stock owned by the
Borrower and the Subsidiaries would represent more than 25% of the assets of the
Borrower and the Subsidiaries on a consolidated basis (valued in accordance with
Regulation U); provided that notwithstanding the foregoing, (i) the Borrower may
repurchase its capital stock pursuant to the Borrower's stock buyback program
described in the Borrower's Current Report on Form 8-K filed with the Securities
and Exchange Commission on July 25, 2000, and (ii) the Borrower and the
Subsidiaries may purchase Margin Stock in an aggregate amount of $1,000,000
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 the Borrower and the Subsidiaries will be valued at the higher
of (x) the market capitalization of the Borrower and (y) such amount as the
management of the Borrower reasonably determines could be obtained for the
Borrower
51
and the Subsidiaries in an arm's-length transaction with a third party purchaser
treating the Borrower and the Subsidiaries as a going concern.
(b) The Borrower will not, nor will it permit any 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 Borrower and the Agent (i) to cause all Margin Stock owned by the
Borrower and the 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.
SECTION 6.09. Limitation on Investments in Capital Group Partners.
The Borrower shall not make, or permit any Subsidiary to make, any loans,
advances or capital contributions to, or other investments of any kind in,
Capital Group Partners or any of its subsidiaries, except that the Borrower may
(i) make regularly scheduled payments of interest and principal in respect of
any Indebtedness of the Borrower that shall have been purchased or otherwise
acquired by Capital Group Partners from third parties and (ii) contribute any of
the Borrower's ownership interests (including options) of Perkins, Wolf,
▇▇▇▇▇▇▇▇▇ and Company, LLC.
SECTION 6.10. Conduct of Business of Capital Group Partners. The
Borrower shall not permit Capital Group Partners to engage in any business or
business activity other than those in which the Borrower, the Subsidiaries or
Capital Group Partners are engaged as of the date hereof and other businesses
and business activities reasonably related thereto.
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 the Borrower or any Subsidiary to the Lenders or the Agent, or
any information or report furnished by the Borrower or any Subsidiary to
the Lenders or the Agent, in each case under or in connection with any
Loan Document, shall be materially false on the date as of which made or
furnished;
(b) nonpayment by the Borrower of principal of any Loan when due;
(c) nonpayment by the 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 the Borrower of any of the terms or provisions of
Section 5.01(c) or 5.07 or Article VI;
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(e) the breach by the 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 or any other Loan Document
which is not remedied within 30 days after written notice from the Agent
or any Lender;
(f) the failure of the Borrower or any Subsidiary to pay any
Indebtedness in excess of $25,000,000 (or its equivalent in any other
currency) in aggregate principal amount when due; or the occurrence of any
default or any change in control or similar event that under the terms of
any agreement or instrument governing any Indebtedness of the Borrower or
any Subsidiary in excess of $25,000,000 (or its equivalent in any other
currency) in aggregate principal amount shall cause, or to permit the
holder or holders of such Indebtedness or a trustee or other
representative acting on their behalf to cause, such Indebtedness to
become due prior to its stated maturity or permit the holder or holders of
such Indebtedness or a trustee or other representative acting on their
behalf to require such Indebtedness to be repurchased or redeemed prior to
its stated maturity;
(g) the 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 Borrower or
any Subsidiary, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the 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 the Borrower or
any Subsidiary and such appointment shall continue undischarged or such
proceeding shall continue 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 the Borrower or any Subsidiary or an amount of such property
or assets having depreciated book values (determined in accordance with
53
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) the 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 $25,000,000 (or its equivalent in any other currency) that is
not stayed on appeal or otherwise being appropriately contested in good
faith; provided, that any such judgment or order shall not give rise to an
Event of Default under this clause (j) if and so long as (A) the amount of
such judgment or order which remains unsatisfied is covered by a valid and
binding policy of insurance between the Borrower or such Subsidiary and a
financially responsible insurer covering full payment of such unsatisfied
amount and (B) such insurer has acknowledged coverage of the amount of
such judgment or order;
(k) the Unfunded Liabilities of all Plans shall exceed in the
aggregate $25,000,000, or any Reportable Event shall occur in connection
with any Plan or any Withdrawal Liability in excess of $15,000,000 shall
be incurred with respect to any Multiemployer Plan or the 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 the Borrower or any member of the
Controlled Group would exceed $10,000,000 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) the Borrower shall cease to be the owner, directly or
indirectly, of all the outstanding voting securities or membership
interests, as appropriate, of Capital Group Partners or Janus Capital
Management LLC; or
(n) any Loan Document shall cease at any time to be valid,
enforceable or in full force and effect, or the Borrower or any Subsidiary
shall so assert in writing;
then, and in every such event (other than an event with respect to the 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 Borrower, 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 accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
54
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event with respect to the 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 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 the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding.
ARTICLE VIII
THE AGENT
In order to expedite the transactions contemplated by this
Agreement, Citicorp USA, Inc. 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 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 the Borrower of any Event of Default 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 the 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 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 the 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 Document, instrument or agreement. 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 the
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
55
breach by any other Lender or the 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 Borrower. Upon any such resignation, the Required Lenders shall have the
right, after consultation with the Borrower, 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 $500,000,000 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 9.05 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 Borrower 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 and participations in Swingline 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 Borrower
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
56
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 Borrower; 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, the other Loan Documents, any related
agreement or any document furnished hereunder or thereunder.
Each Lender hereby acknowledges that the Syndication Agent has no
duties or responsibilities hereunder other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Except as otherwise specifically provided for
in this Agreement (including, without limitation, in Sections 5.04 and 9.17),
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 the Borrower, to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ Attention of Vice President-Treasurer (Telecopy No. (303)
316-5651) with a copy to General Counsel (Telecopy No. (303)
316-5728);
(b) if to the Agent or the Swingline Lender, to it at Citicorp
USA, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇▇▇▇▇ Quezon (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(c) 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 9.01 or in accordance with
57
the latest unrevoked direction from such party given in accordance with this
Section 9.01; provided, that, unless otherwise specifically provided in Article
II, all notices given under Article II shall be delivered by hand or overnight
courier service or sent by facsimile.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the 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 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agent and when the
Agent shall have received copies hereof which, when taken together, bear the
signatures of all the Lenders, and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not 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 9.04. 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 the 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 the Lenders party to such Assignment and Acceptance shall pay to
the Agent a processing and recordation fee of $3,500 (except that no recordation
fee shall be required if the assignee is an Affiliate of the assignor) 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 9.04, from and after the effective
58
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 2.14,
2.16, 2.20 and 9.05, 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 Borrower or any Subsidiary or the performance or observance by the Borrower
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.
59
(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 Borrower,
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 Borrower
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 Borrower 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 Borrower, 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 2.14, 2.16 and 2.20 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 Borrower, 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 the
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 9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such proposed
assignee or participant shall execute a confidentiality agreement in the form of
Exhibit E hereto.
60
(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 Borrower, the option to provide to
the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower 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 Borrower, 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 9.04 or in Section 9.16, any SPC may (i)
with notice to, but without the prior written consent of, the Borrower 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 9.16 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 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, the 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 by the
assigning Lender hereunder.
(j) The Borrower shall not assign or delegate any of its rights or
duties hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay
all reasonable out-of-pocket expenses incurred by the Agent and its Affiliates
in
61
connection with the arrangement and syndication of the credit facility
established hereby, the preparation of this Agreement and the other Loan
Documents and 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, the
other Loan Documents or the Loans made hereunder, including the reasonable fees,
charges and disbursements of Cravath, Swaine & ▇▇▇▇▇ LLP and, in connection with
any such enforcement or protection, the reasonable fees, charges and
disbursements of any other counsel for the Agent or any Lender (it being agreed
that, except in connection with any such enforcement or protection, the Borrower
shall be responsible for the fees, charges and disbursements of only one counsel
unless, in the judgment of the Agent, additional counsel shall be required as a
result of any conflict of interests). The 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) The 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 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 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
Borrower also agrees 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 9.05 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 9.05 shall be payable on written demand therefor.
62
SECTION 9.06. 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 the Borrower against any of and all the
obligations of the 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 9.07. 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 9.08. 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 the Borrower in any case shall entitle the
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 Borrower 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
2.17, the provisions of this Section or the definition of "Required Lenders"
without the prior written consent of each Lender or (iv) release Janus Capital
Management LLC from the LLC Guaranty, or limit its liability in respect of the
LLC Guaranty, 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,
63
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 9.09. 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 9.10. 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 9.11. 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 9.11.
SECTION 9.12. 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 9.13. 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 9.03.
SECTION 9.14. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this
64
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) The
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) The 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 9.01. 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 9.16. 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 or claiming to have 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 the 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 the
Borrower or its Affiliates or the Agent; (iv) as provided in Section 9.04(g); or
(v) to the extent the Borrower shall have consented to such disclosure
65
in writing. As used in this Section 9.16, "Information" shall mean the
Confidential Memorandum and any other confidential materials, documents and
information relating to the Borrower that the 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 9.16.
SECTION 9.17. Electronic Communications. (a) The Borrower hereby
agrees that, unless otherwise requested by the Agent, it will provide to the
Agent all information, documents and other materials that it is obligated to
furnish to the Agent pursuant to Section 5.04(a), (b), (e) and (f) the
"Communications") by transmitting the Communications in an electronic/soft
medium (provided such Communications contain any required signatures) in a
format reasonably acceptable to the Agent to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ (or
such other e-mail address as shall be designated by the Agent from time to
time); provided, that any delay or failure to comply with the requirements of
this Section 9.17(a) shall not constitute a Default or an Event of Default
hereunder.
(b) Each party hereto agrees that the Agent may make the
Communications available to the Lenders by posting the Communications on
IntraLinks or another relevant website, if any, to which each Lender and the
Agent have access (whether a commercial, third-party website or whether
sponsored by the Agent) (the "Platform"). Nothing in this Section 9.17 shall
prejudice the right of the Agent to make the Communications available to the
Lenders in any other manner specified in the Loan Documents.
(c) Each Lender agrees that e-mail notice to it (at the address
provided pursuant to the next sentence and deemed delivered as provided in the
next paragraph) specifying that Communications have been posted to the Platform
shall constitute effective delivery of such Communications to such Lender for
purposes of the Loan Documents. Each Lender agrees (i) to notify the Agent in
writing (including by electronic communication) from time to time to ensure that
the Agent has on record an effective e-mail address for such Lender to which the
foregoing notice may be sent by electronic transmission and (ii) that the
foregoing notice may be sent to such e-mail address.
(d) Each party hereto agrees that any electronic communication
referred to in this Section 9.17 shall be deemed delivered upon the posting of a
record of such communication (properly addressed to such party at the e-mail
address provided to the Agent) as "sent" in the e-mail system of the sending
party or, in the case of any such communication to the Agent or any Lender, upon
the posting of a record of such communication as "received" in the e-mail system
of the Agent or any Lender; provided that if such communication is not so
received by the Agent or a Lender during the normal business hours of the Agent
or applicable Lender, such communication shall be deemed
66
delivered at the opening of business on the next Business Day for the Agent or
applicable Lender.
(e) Each party hereto acknowledges that (i) the distribution of
material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution, (ii) the
Communications and the Platform are provided "as is" and "as available," (iii)
none of the Agent, its affiliates or any of their respective officers,
directors, employees, agents, advisors or representatives (collectively, the
"Citigroup Parties") warrants the adequacy of the Platform or the accuracy or
completeness of the Communications or the Platform, and each Citigroup Party
expressly disclaims liability for errors or omissions in any Communications or
the Platform, and (iv) no warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by any Citigroup Party in connection with
any Communications or the Platform.
SECTION 9.18. USA Patriot Act. Each Lender that is subject to
Section 326 of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the "Act") hereby notifies the Borrower that pursuant to the
requirements of the Act it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Act.
67
IN WITNESS WHEREOF, the Borrower, 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.
JANUS CAPITAL GROUP INC.,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name:
Title:
CITICORP USA, INC., individually and as
Administrative Agent and as
Swingline Lender,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
68
SIGNATURE PAGE TO THE 364-Day
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY
AGREEMENT DATED AS OF OCTOBER
20, 2004, OF JANUS CAPITAL GROUP
INC.
BANK OF AMERICA, N.A. /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
by Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH /s/ ▇▇▇ ▇▇▇▇▇
---------------------------
by Name: ▇▇▇ ▇▇▇▇▇
Title: Director
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
by Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate
DEUTSCHE BANK AG
NEW YORK BRANCH /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------
by Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
by Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
HSBC BANK USA, N.A. /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
by Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice
President
69
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
by Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
STATE STREET BANK AND TRUST COMPANY /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
by Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
UBS LOAN FINANCE LLC /s/ ▇▇▇▇▇▇▇ Saint
---------------------------
by Name: ▇▇▇▇▇▇▇ Saint
Title: Director - Banking
Products Services, US
/s/ Winslowe Ogbourne
---------------------------
by Name: Winslowe Ogbourne
Title: Associate Director
Banking Products Services,
US
▇▇▇▇▇ FARGO BANK, N.A. /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
by Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Schedule 2.01
Commitments
LENDER ALLOCATION
----------------------------------- -----------
Citicorp USA, Inc. $ 27,500,000
JPMorgan Chase Bank $ 27,500,000
Bank of America, N.A. $ 25,000,000
State Street Bank and Trust Company $ 25,000,000
▇▇▇▇▇ Fargo Bank, N.A. $ 25,000,000
Credit Suisse First Boston $ 17,500,000
Deutsche Bank AG, New York Branch $ 17,500,000
HSBC Bank USA, N.A. $ 17,500,000
UBS Loan Finance LLC $ 17,500,000
------------
TOTAL: $200,000,000
JANUS CAPITAL GROUP INC.
364-DAY COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
SCHEDULE 3.07 - SUBSIDIARIES
Percent Jurisdiction
Investment In Owned By Ownership of Ownership
------------- -------- --------- ------------
Janus Capital Management LLC
Janus Capital Group Inc. 95% Delaware
Janus Management Holdings
Corporation 5%
Janus Capital International LLC Janus Capital Management LLC 100% Delaware
Janus International Holding LLC (Class A) Janus Holdings Corporation 100% Nevada
Janus International Holding LLC (Class B) Janus Capital Management LLC 100%
Janus Capital Trust Manager Limited Janus International Holding LLC 100% Ireland
Janus International (Asia) Limited Janus International Holding LLC 100% Hong Kong
Janus International Limited Janus International Holding LLC 100% England
&
Wales
Janus Distributors LLC Janus Capital Management LLC 100% Delaware
Janus Institutional Services LLC Janus Capital Management LLC 100% Delaware
Janus Services LLC Janus Capital Management LLC 100% Delaware
Perkins, Wolf, ▇▇▇▇▇▇▇▇▇ and Company, LLC Janus Capital Management LLC 30% Delaware
The Janus Foundation (indirect affiliate) Janus Capital Management LLC 100% Delaware
▇▇▇▇▇▇ Financial Group LLC Janus Capital Management LLC 100% Nevada
Bay Isle Financial LLC Janus Capital Management LLC 100% Delaware
Enhanced Investment Technologies, LLC Janus Capital Management LLC 77.5% Delaware
Janus Management Holdings Corporation
Janus Capital Group Inc. 100% Delaware
Janus Holdings Corporation
Janus Capital Group Inc. 100% Nevada
Capital Group Partners, Inc.
Janus Capital Group Inc. 100% New York
Vermont Investors Assurance Corporation
Janus Capital Group Inc. 100% Vermont
Loess Corp. Janus Capital Group Inc. 100% Missouri
Brookside Water Treatment, Inc. Loess Corp. 100% Missouri
PVI, Inc. Janus Capital Group Inc. 100% Delaware
Z-Gard, Inc. PVI, Inc. 100% Delaware
Martec Pharmaceutical, Inc. PVI, Inc. 49% Delaware
Animal Resources Inc. PVI, Inc. 49% Missouri
Central Biomedia, Inc. Animal Resources Inc. 45% Missouri
SERA, Inc. Central Biomedia Inc. 100% Missouri
Immunomatrix Central Biomedia Inc. 100% Missouri
JANUS CAPITAL GROUP INC.
364-DAY COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
SCHEDULE 3.08 - LITIGATION
On September 29, 2004, five consolidated and amended complaints against the
Borrower and related entities and individuals were filed in the Federal District
Court in Baltimore, Maryland. These complaints, as a practical matter, supersede
the previously filed complaints, relating to alleged market-timing, that had
been transferred to the Federal District Court in Baltimore, Maryland for
coordinated proceedings (as described more fully in the Borrower's Quarterly
Report on Form 10-Q for the quarter ended June 30, 2004). The five complaints
include (i) claims by a putative class of Janus Fund investors asserting claims
on behalf of the investor class, (ii) derivative claims by investors in the
Janus Funds ostensibly on behalf of the Janus Funds, (iii) claims on behalf of
participants in the Janus 401(k) plan, (iv) claims brought on behalf of
shareholders of the Borrower on a derivative basis against the Board of
Directors of the Borrower, and (v) claims by a putative class of shareholders of
the Borrower asserting claims on behalf of the shareholders. Each of the five
complaints names the Borrower and/or Janus Capital Management LLC as a
defendant. In addition, the following are named as defendants in one or more of
the actions: Janus Investment Fund, Janus Aspen Series, Janus Adviser Series,
Janus Distributors LLC, INTECH, Bay Isle, ▇▇▇▇▇▇▇ ▇▇▇▇, the Advisory Committee
of the Janus 401(k) plan, and the current or former directors of the Borrower.
JANUS CAPITAL GROUP INC.
364-DAY COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
SCHEDULE 3.15 - DIVIDEND RESTRICTIONS
The understanding in connection with the rendering of an opinion from the
Borrower's tax advisors regarding the DST Equity Exchange, as more fully
described in the Borrower's Form 10-K for the fiscal year ended December 31,
2003.
JANUS CAPITAL GROUP INC.
364-DAY COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
SCHEDULE 6.01 - INDEBTEDNESS
None.
JANUS CAPITAL GROUP INC.
364-DAY COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
SCHEDULE 6.02 - LIENS
None.
JANUS CAPITAL GROUP INC.
364-DAY COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
SCHEDULE 6.03 - SALE - LEASEBACK TRANSACTIONS
None.
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
Citicorp USA, Inc., as Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [ ]
[Date]
Re: 364-Day Credit Agreement Referred to Below
Dear Sirs:
The undersigned, Janus Capital Group Inc. (the "Borrower"),
refers to the
364-Day Competitive Advance and Revolving Credit Facility
Agreement dated as of October 20, 2004 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
the Borrower, the Lenders from time to time party thereto, Citicorp USA, Inc.,
as Administrative Agent and JPMorgan Chase 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 Day)
---------
(B) Principal Amount of
Competitive Borrowing(1)
---------
(C) Interest rate basis(2)
---------
(D) Interest Period and the last
day thereof(3)
---------
----------
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.
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(c) and (d) of the Credit Agreement have been satisfied.
Very truly yours,
JANUS CAPITAL GROUP INC.,
By
----------------------------
Title: [Responsible Officer]
----------
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: 364-Day Credit Agreement Referred to Below
Dear Sirs:
Reference is made to the 364-Day Competitive Advance and
Revolving Credit Facility Agreement dated as of October 20, 2004 (as it may
hereafter be amended, modified, extended or restated from time to time, the
"Credit Agreement"), among Janus Capital Group Inc., the Lenders from time to
time party thereto, Citicorp USA, Inc., as Administrative Agent and JPMorgan
Chase 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. Janus Capital Group Inc. 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 ---------
----------
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.
Very truly yours,
CITICORP USA, INC., as Agent,
by
----------------------------------
Title:
EXHIBIT A-3
FORM OF COMPETITIVE BID
Citicorp USA, Inc., as Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [ ]
[Date]
Re: 364-Day Credit Agreement Referred to Below
Dear Sirs:
The undersigned, [Name of Bank], refers to the 364-Day Competitive
Advance and Revolving Credit Facility Agreement dated as of October 20, 2004 (as
it may hereafter be amended, modified, extended or restated from time to time,
the "Credit Agreement"), among Janus Capital Group Inc. (the "Borrower"), the
Lenders from time to time party thereto, Citicorp USA, Inc., as Administrative
Agent and JPMorgan Chase 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 the Borrower 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
---------
----------
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 ▇▇▇▇▇.
▇/ ▇▇▇▇ Rate + or -%, in the case of Eurodollar Loans or%, in the case of
Fixed Rate Loans.
The undersigned hereby confirms that it is prepared, subject
to the conditions set forth in the Credit Agreement, to extend credit to the
Borrower upon acceptance by the Borrower of this bid in accordance with Section
2.03(d) of the Credit Agreement.
Very truly yours,
[NAME OF BANK],
by
--------------------------------
Title:
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
Citicorp USA, Inc., as Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [ ]
Re: 364-Day Credit Agreement Referred to Below
Dear Sirs:
The undersigned, Janus Capital Group Inc. (the "Borrower"),
refers to the 364-Day Credit Agreement dated as of October 20, 2004 (as it may
hereafter be amended, modified, extended or restated from time to time, the
"Credit Agreement"), among the Borrower, the Lenders from time to time party
thereto, Citicorp USA, Inc., as Administrative Agent and JPMorgan Chase 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 Citicorp USA, Inc. account
number [ ] on [date].
Very truly yours,
JANUS CAPITAL GROUP INC.,
by
------------------------------
Name:
Title:
EXHIBIT A-5
FORM OF STANDBY BORROWING REQUEST
Citicorp USA, Inc., as Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [ ]
[Date]
Re: 364-Day Credit Agreement Referred to Below
Dear Sirs:
The undersigned, Janus Capital Group Inc. (the "Borrower"),
refers to the 364-Day Competitive Advance and Revolving Credit Facility
Agreement dated as of October 20, 2004 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
the Borrower, the Lenders from time to time party thereto and Citicorp USA,
Inc., as Administrative Agent and JPMorgan Chase 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)
---------
----------
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.
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(c) and
(d) of the Credit Agreement have been satisfied.
Very truly yours,
JANUS CAPITAL GROUP INC.,
by
-------------------------------
Title: [Responsible Officer]
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Competitive Advance and
Revolving Credit Facility Agreement dated as of October 20, 2004 (the "Credit
Agreement"), among Janus Capital Group Inc., a Delaware corporation, the lenders
from time to time party thereto (the "Lenders"), Citicorp USA, Inc., as agent
for the Lenders (in such capacity, the "Agent") and JPMorgan Chase 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 9.04(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 2.20(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:
2
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Percentage Assigned of
Facility/Commitment (set forth,
Principal Amount assigned to at least 8 decimals, as a
(and identifying information percentage of the Facility and
as to individual Competitive the aggregate Commitments of all
Facility Loans) 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 CITICORP USA, INC., as Agent
----------------------
By: By:
--------------------------------- -------------------------------------
Name: Name:
Title: Title:
, as Assignee
----------------------
By:
--------------------------------- JANUS CAPITAL GROUP INC.,
Name: By:
Title: -------------------------------------
Name:
Title:
CITICORP USA, INC., as Swingline Lender,
By:
-------------------------------------
Name:
Title:
3
------------------
*/ To be completed only if consents are required under Section 9.04(b).
EXHIBIT D
[FORM OF]
COMPLIANCE CERTIFICATE
To: The Lenders party to the
Credit Agreement described below
care of
Citicorp USA, Inc., as Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [ ]
This Compliance Certificate is furnished pursuant to the
364-Day Credit Agreement dated as of October 20, 2004 (the "Agreement"), among
Janus Capital Group Inc., (the "Borrower"), the Lenders from time to time party
thereto, Citicorp USA, Inc., as Agent and JPMorgan Chase 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 the
Borrower;
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 Borrower 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 Borrower's and the Subsidiaries' compliance with
certain covenants of the Agreement, including 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 Borrower has 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 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]
Citicorp USA, Inc., as Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [ ]
Janus Capital Group Inc.
Confidentiality Agreement
Dear Sirs:
In connection with our possible acquisition of an interest in
the credit facility (the "Facility") established by the 364-Day Credit Agreement
dated as of October 20, 2004 (the "Agreement"), among the Borrower as defined
therein, the lenders from time to time party thereto (the "Lenders"), Citicorp
USA, Inc., as Agent and JPMorgan Chase Bank, as Syndication Agent, you, the
Borrower or any Lender may furnish us with confidential documents, materials and
information (the "Information") relating to the Borrower. Unless otherwise
defined herein, the terms used in this agreement have the meanings assigned to
them in the Agreement.
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
Borrower, 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 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
Borrower or its Affiliates or any Lender or (C) was available to us on a
nonconfidential basis prior to its disclosure to us by you, the
Borrower or its Affiliates or any Lender; or (iv) to the extent the Borrower
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:
EXHIBIT F
EXECUTION COPY
GUARANTY DATED AS OF OCTOBER 20, 2004,
BETWEEN JANUS CAPITAL MANAGEMENT LLC, A DELAWARE LIMITED
LIABILITY COMPANY (THE "GUARANTOR"), AND CITICORP USA,
INC., AS AGENT FOR THE LENDERS (AS SUCH TERMS ARE
DEFINED IN THE CREDIT AGREEMENT REFERRED TO BELOW).
Reference is made to the 364-Day Competitive Advance and Revolving
Credit Facility Agreement dated as of October 20, 2004, as amended, restated,
supplemented or otherwise modified from time to time (the "Credit Agreement"),
among Janus Capital Group Inc., a Delaware corporation (the "Borrower"), the
Lenders party thereto and the Agent. Capitalized terms used but not otherwise
defined herein have the meanings assigned to them in the Credit Agreement.
The Lenders have agreed to extend credit to the Borrower on the
terms and subject to the conditions set forth in the Credit Agreement. The
Guarantor will derive substantial benefits from the extension of credit to the
Borrower pursuant to the Credit Agreement and is willing to execute and deliver
this Agreement in order to induce the Lenders to continue to extend such credit.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. The Guarantor unconditionally guarantees, as a
primary obligor and not merely as a surety, the due and punctual payment and
performance of all of the Obligations from time to time outstanding under the
Credit Agreement. The Guarantor further agrees that the due and punctual payment
of the Obligations 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
guaranty hereunder notwithstanding any such extension or renewal of any
Obligation of the Borrower pursuant to the Credit Agreement.
SECTION 2. Obligations Not Waived. To the fullest extent permitted
by applicable law, the Guarantor waives presentment to, demand of payment from
and protest to the Borrower or to any other guarantor of any of the Obligations,
and also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the obligations
of the Guarantor hereunder shall not be affected by (a) the failure of the Agent
or any Lender to assert any claim or demand or to enforce or exercise any right
or remedy against the Borrower or any other guarantor under the provisions of
the Credit 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 any release from any of the terms or provisions of any other
Loan Document or any other guaranty, (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 the Guarantor or otherwise operate
as a discharge of the Guarantor as a matter of law or equity.
SECTION 3. Guaranty of Payment. The Guarantor further agrees that
its guaranty constitutes a guaranty 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 the Agent
or any Lender to any balance of any deposit account or credit on the books of
the Agent or any Lender in favor of the Borrower, any other guarantor or any
other Person.
SECTION 4. No Discharge or Diminishment of Guaranty. The obligations
of the Guarantor hereunder shall not be subject to any reduction, limitation,
impairment, recoupment or termination for any reason (other than the payment in
full in cash of all of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, 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.
SECTION 5. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Agent or any Lender
has at law or in equity against the Guarantor by virtue hereof, upon the failure
of the Borrower to pay any Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice of prepayment or otherwise,
the Guarantor hereby promises to and will forthwith pay, or cause to be paid, to
the Agent or such Lender as designated thereby in cash the amount of such unpaid
Obligation. Upon payment by the Guarantor of any sums as provided above, all
rights of the Guarantor against the Borrower arising as a result thereof by way
of right of subrogation, contribution, reimbursement, indemnity 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 (it being understood
that, after the discharge of all the Obligations, such rights may be exercised
by the Guarantor notwithstanding that the Borrower may remain contingently
liable for indemnity or other Obligations). If any amount shall erroneously be
paid to the Guarantor on account of such subrogation such amount shall be held
in trust for the benefit of the Lenders and shall forthwith be paid to the Agent
to be credited against the payment of the Obligations, whether matured or
unmatured, in accordance with the terms of the Credit Agreement or any other
Loan Document.
SECTION 6. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that the Guarantor
assumes and incurs hereunder, and agrees that none of the Agent and the Lenders
will have any duty to advise the Guarantor of information known to it or any of
them regarding such circumstances or risks.
SECTION 7. Representations and Warranties. The Guarantor represents
and warrants as to itself that:
(a) The Guarantor is a limited liability company duly formed,
validly existing and in good standing under the laws of its jurisdiction of
formation 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.
- 2 -
(b) The Guarantor has the full power and authority and legal right
to execute and deliver this Guaranty and to perform its obligations hereunder
(collectively, the "Transactions"). The Transactions have been duly authorized
by proper corporate proceedings, and this Guaranty constitutes a legal, valid
and binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
(c) None of the Transactions will violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on the Guarantor or
the Guarantor's certificate of formation or limited liability company agreement
or the provisions of any indenture, instrument or agreement to which the
Guarantor 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 the Guarantor
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 this Guaranty.
(d) The Guarantor has, to its best knowledge and belief, 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 its businesses or the
ownership of its properties, except to the extent that the failure to comply
therewith could not, in the aggregate, be reasonably expected to have a Material
Adverse Effect. The Guarantor 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. The Guarantor has not
received notice of any material failure so to comply which could reasonably be
expected to result in a Material Adverse Effect. The Guarantor's 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. The Guarantor 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 the Guarantor which could reasonably be expected to result in a Material
Adverse Effect.
(e) Except for any Disclosed Matter, there is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of its officers, threatened against or affecting the
Guarantor 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) could reasonably be expected to have a Material Adverse Effect.
SECTION 8. Termination. The obligations of the Guarantor hereunder
(a) shall, subject to clause (b) below, terminate when all the Obligations have
been paid in full and the
- 3 -
Lenders have no further commitment to lend under the Credit Agreement and (b)
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 the Agent or any Lender upon the bankruptcy or
reorganization of the Borrower or otherwise.
SECTION 9. Binding Agreement; Assignments. Whenever in this Guaranty
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 the Guarantor that are contained in this
Guaranty shall bind and inure to the benefit of each party hereto and their
respective successors and assigns. This Guaranty shall become effective when a
counterpart hereof executed on behalf of the Guarantor shall have been delivered
to the Agent and a counterpart hereof shall have been executed on behalf of the
Agent, and thereafter shall be binding upon the Guarantor and the Agent and
their respective successors and assigns, and shall inure to the benefit of the
Guarantor, the Agent and the Lenders, and their respective successors and
assigns, except that the Guarantor shall not have the right to assign its rights
or obligations hereunder or any interest herein and any such attempted
assignment shall be void.
SECTION 10. 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 or any Lender
hereunder or under the Credit Agreement or any other Loan Document are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Guaranty shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on the Guarantor in any case shall entitle
the Guarantor to any other or further notice or demand in similar or other
circumstances.
(a) Neither this Guaranty nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantor and the Agent (with the prior written consent of the Lenders if
required under the Credit Agreement).
SECTION 11. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 12. Notices. All communications and notices hereunder shall
be in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to the Guarantor shall be given to it in
care of the Borrower.
SECTION 13. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Guaranty shall be considered to have been relied upon by the
Agent and the Lenders and shall survive the making by the Lenders of the Loans
regardless of any investigation made by any of them or on their behalf, and
shall continue in full force and effect as long as the principal of or any
accrued
- 4 -
interest on any Loan or any other fee or amount payable under this Guaranty or
any other Loan Document is outstanding and unpaid and as long as the Commitments
have not been terminated.
(a) In the event any one or more of the provisions contained in this
Guaranty should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). 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 14. Counterparts. This Guaranty may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided herein. Delivery of an executed signature page to this Guaranty by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart of this Guaranty.
SECTION 15. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Guaranty.
SECTION 16. Jurisdiction; Consent to Service of Process. (a) The
Guarantor 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 Guaranty, 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 Guaranty shall affect any right that the Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Guaranty
against the Guarantor or its properties in the courts of any jurisdiction.
(a) The Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guaranty 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.
(b) Each party to this Guaranty irrevocably consents to service of
process in the manner provided for notices in Section 12. Nothing in this
Guaranty will affect the right of any party to this Guaranty to serve process in
any other manner permitted by law.
SECTION 17. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
- 5 -
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
GUARANTY. 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 GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 18. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each of the Agent and the Lenders 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 Person to or for the credit or the account of the Guarantor
against any or all the obligations of the Guarantor now or hereafter existing
under this Guaranty held by such Person, irrespective of whether or not such
Person shall have made any demand under this Guaranty and although such
obligations may be unmatured. The rights of each Person under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Person may have.
- 6 -
IN WITNESS WHEREOF, the parties hereto have duly executed this
Guaranty as of the day and year first above written.
JANUS CAPITAL MANAGEMENT LLC,
By: JANUS CAPITAL GROUP INC., as sole
member,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name:
Title:
By: CITICORP USA, INC. as Agent,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
- 7 -
EXHIBIT G
ADMINISTRATIVE DETAILS FORM
DEAL NAME: JANUS
GENERAL INFORMATION
YOUR INSTITUTIONS LEGAL NAME:
TAX WITHHOLDING:
Note: To avoid the potential of having interest income withheld, all investors
must deliver all current and appropriate tax forms.
Tax ID #:
SUB-ALLOCATION: (United States only)
Note: If your institution is sub-allocating its allocation, please fill out the
information below. Additionally, an administrative detail form is required for
each legal entity. Execution copies (e.g. Credit Agreement/Assignment
Agreement) will be sent for signature to the Sub-Allocation Contact below.
Sub-Allocated Amount: $
---------------------------
Signing Credit Agreement? [ ] Yes [ ] No
Coming In Via Assignment? [ ] Yes [ ] No
SUB-ALLOCATION CONTACT:
NAME:
Address: E-mail:
----------------------- -------------------------
City: State: Phone #:
----------------------- ------------- -------------------------
Postal Code: Country: Fax #:
----------------------- ------------- -------------------------
CONTACT LIST
BUSINESS/CREDIT MATTERS: (Responsible for trading and credit approval process of the deal)
Primary:
NAME:
Address: E-mail:
----------------------- -------------------------
City: State: Phone #:
----------------------- ------------- -------------------------
Postal Code: Country: Fax #:
----------------------- ------------- -------------------------
Backup:
NAME:
Address: E-mail:
----------------------- -------------------------
City: State: Phone #:
----------------------- ------------- -------------------------
Postal Code: Country: Fax #:
----------------------- ------------- -------------------------
Admin Details can be submitted online, via Citigroup's Global Loans Web Site.
Send an e-mail to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ with your contact information
and the deal name to request a user ID/password to submit/modify Admin Details
online.
ADMINISTRATIVE DETAILS FORM
ADMIN/OPERATIONS MATTERS: (Responsible for interest, fee, principal payment, borrowing & pay-downs)
Primary:
NAME:
Address: E-mail:
----------------------- -------------------------
City: State: Phone #:
----------------------- ------------- -------------------------
Postal Code: Country: Fax #:
----------------------- ------------- -------------------------
Backup:
NAME:
Address: E-mail:
----------------------- -------------------------
City: State: Phone #:
----------------------- ------------- -------------------------
Postal Code: Country: Fax #:
----------------------- ------------- -------------------------
CLOSING CONTACT: (Responsible for Deal Closing matters)
NAME:
Address: E-mail:
----------------------- -------------------------
City: State: Phone #:
----------------------- ------------- -------------------------
Postal Code: Country: Fax #:
----------------------- ------------- -------------------------
DISCLOSURE CONTACT: (Receives disclosure materials, such as financial reports, via our web site)
NAME:
Address: E-mail:
----------------------- -------------------------
City: State: Phone #:
----------------------- ------------- -------------------------
Postal Code: Country: Fax #:
----------------------- ------------- -------------------------
Admin Details can be submitted online, via Citigroup's Global Loans Web Site.
Send an e-mail to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ with your contact information
and the deal name to request a user ID/password to submit/modify Admin Details
online.
2
ADMINISTRATIVE DETAILS FORM
ROUTING INSTRUCTIONS
ROUTING INSTRUCTIONS FOR THIS DEAL:
CORRESPONDENT BANK:
City: State: ACCOUNT NAME:
----------------------- ------------- -------------------------
Postal Code: ACCOUNT#:
----------------------- ------------- -------------------------
Payment Type: BENEF. ACCT. NAME:
-------------------------
[ ] Fed [ ] ABA [ ] CHIPS BENEF. ACCT. #:
ABA/CHIPS #:
REFERENCE:
-------------------------------
Attention:
-------------------------------
ADMINISTRATIVE AGENT INFORMATION
BANK LOANS SYNDICATION - AGENT CONTACT AGENT WIRING INSTRUCTIONS
Name: ▇▇▇▇▇▇▇▇▇ Quezon
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Citibank, N.A.
Fax: ▇▇▇-▇▇▇-▇▇▇▇ ABA #: 021-00-0089
Acct Name:
Address: ▇ ▇▇▇▇▇ ▇▇▇ Medium Term Finance
Suite 200 Acct #: 36852248
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INITIAL FUNDING STANDARDS: LIBOR - Fund 2 days after rates are set.
Admin Details can be submitted online, via Citigroup's Global Loans Web Site.
Send an e-mail to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ with your contact information
and the deal name to request a user ID/password to submit/modify Admin Details
online.
3