Exhibit 10.2


 


EXHIBIT A




 





 


FIVE-YEAR COMPETITIVE
ADVANCE AND


REVOLVING CREDIT FACILITY
AGREEMENT


 


 


dated as of October 19,
2005,


 


as amended and restated as
of June 1, 2007,


 


as further amended and
restated as of June 12, 2009,


 


among


 


 


JANUS CAPITAL GROUP INC.,


 


 


THE LENDERS PARTY HERETO,


 


 


CITIBANK, N.A.,


as Agent,


 


 


and


 


 


JPMORGAN CHASE BANK, N.A.,


as Syndication Agent


 






 


 


CITIGROUP GLOBAL MARKETS
INC.


 


 


and


 


 


J.P. MORGAN SECURITIES INC.,


 


Co-Arrangers and Co-Book Managers




 





[CS&M C/M 06558-634]


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE I

  
	
   

  
	
  DEFINITIONS

  
	
   

  
	
  SECTION
  1.01.

  	
  Defined
  Terms

  	
  1

  
	
  SECTION
  1.02.

  	
  Terms
  Generally

  	
  29

  
	
  SECTION
  1.03.

  	
  Accounting
  Terms

  	
  30

  
	
   

  
	
  ARTICLE II

  
	
   

  
	
  THE CREDITS

  
	
   

  
	
  SECTION
  2.01.

  	
  Commitments

  	
  31

  
	
  SECTION
  2.02.

  	
  Loans

  	
  31

  
	
  SECTION
  2.03.

  	
  Competitive
  Bid Procedure

  	
  32

  
	
  SECTION
  2.04.

  	
  Standby
  Borrowing Procedure

  	
  34

  
	
  SECTION
  2.05.

  	
  Standby
  Interest Elections

  	
  35

  
	
  SECTION
  2.06.

  	
  Fees

  	
  36

  
	
  SECTION
  2.07.

  	
  Repayment
  of Loans; Evidence of Debt

  	
  37

  
	
  SECTION
  2.08.

  	
  Interest
  on Loans

  	
  37

  
	
  SECTION
  2.09.

  	
  Default
  Interest

  	
  38

  
	
  SECTION
  2.10.

  	
  Alternate
  Rate of Interest

  	
  38

  
	
  SECTION
  2.11.

  	
  Termination
  and Reduction of Commitments

  	
  39

  
	
  SECTION
  2.12.

  	
  Prepayment

  	
  39

  
	
  SECTION
  2.13.

  	
  Reserve
  Requirements; Change in Circumstances

  	
  41

  
	
  SECTION
  2.14.

  	
  Change
  in Legality

  	
  42

  
	
  SECTION
  2.15.

  	
  Indemnity

  	
  43

  
	
  SECTION
  2.16.

  	
  Pro
  Rata Treatment

  	
  43

  
	
  SECTION
  2.17.

  	
  Sharing
  of Setoffs

  	
  44

  
	
  SECTION
  2.18.

  	
  Payments

  	
  44

  
	
  SECTION
  2.19.

  	
  Taxes

  	
  45

  
	
  SECTION
  2.20.

  	
  Termination
  or Assignment of Commitments under Certain Circumstances

  	
  48

  
	
  SECTION
  2.21.

  	
  Lending
  Offices and Lender Certificates; Survival of Indemnity

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  
	
  SECTION
  3.01.

  	
  Corporate
  Existence and Standing

  	
  49

  
	
  SECTION
  3.02.

  	
  Authorization
  and Validity

  	
  49

  
	
  SECTION
  3.03.

  	
  No
  Conflict; Governmental Consent

  	
  49

  
	
  SECTION 3.04.

  	
  Compliance with Laws;
  Environmental and Safety Matters

  	
  50

  



 

















 


	
  SECTION
  3.05.

  	
  Financial
  Statements

  	
  50

  
	
  SECTION
  3.06.

  	
  No
  Material Adverse Change

  	
  50

  
	
  SECTION
  3.07.

  	
  Subsidiaries

  	
  51

  
	
  SECTION
  3.08.

  	
  Litigation

  	
  51

  
	
  SECTION
  3.09.

  	
  Material
  Agreements

  	
  51

  
	
  SECTION
  3.10.

  	
  Regulation
  U

  	
  51

  
	
  SECTION
  3.11.

  	
  Investment
  Company Act

  	
  51

  
	
  SECTION
  3.12.

  	
  Use
  of Proceeds

  	
  51

  
	
  SECTION
  3.13.

  	
  Taxes

  	
  51

  
	
  SECTION
  3.14.

  	
  Accuracy
  of Information

  	
  51

  
	
  SECTION
  3.15.

  	
  No
  Undisclosed Dividend Restrictions

  	
  52

  
	
  SECTION
  3.16.

  	
  Properties

  	
  52

  
	
  SECTION
  3.17.

  	
  Collateral
  Matters

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  	
   

  
	
  CONDITIONS

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.01.

  	
  Restatement
  Effective Date

  	
  53

  
	
  SECTION
  4.02.

  	
  All
  Borrowings

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  AFFIRMATIVE COVENANTS

  
	
   

  
	
  SECTION
  5.01.

  	
  Conduct
  of Business; Maintenance of Ownership of Subsidiaries and Maintenance of
  Properties

  	
  54

  
	
  SECTION
  5.02.

  	
  Insurance

  	
  55

  
	
  SECTION
  5.03.

  	
  Compliance
  with Laws and Payment of Material Obligations and Taxes

  	
  55

  
	
  SECTION
  5.04.

  	
  Financial
  Statements, Reports, etc

  	
  56

  
	
  SECTION
  5.05.

  	
  Notices
  of Material Events

  	
  58

  
	
  SECTION
  5.06.

  	
  Books
  and Records; Access to Properties and Inspections

  	
  58

  
	
  SECTION
  5.07.

  	
  Use
  of Proceeds

  	
  59

  
	
  SECTION
  5.08.

  	
  Information
  Regarding Collateral; Deposit Accounts; Securities Accounts

  	
  59

  
	
  SECTION
  5.09.

  	
  Additional
  Subsidiaries

  	
  60

  
	
  SECTION
  5.10.

  	
  Further
  Assurances

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  
	
  NEGATIVE COVENANTS

  
	
   

  
	
  SECTION
  6.01.

  	
  Indebtedness
  of Subsidiaries

  	
  60

  
	
  SECTION
  6.02.

  	
  Liens

  	
  62

  
	
  SECTION
  6.03.

  	
  Sale
  and Lease-Back Transactions

  	
  63

  
	
  SECTION
  6.04.

  	
  Mergers,
  Consolidations and Transfers of Assets

  	
  64

  
	
  SECTION 6.05.

  	
  Transactions with
  Affiliates

  	
  65

  



 


ii

















 


	
  SECTION
  6.06.

  	
  Restrictive
  Agreements; Certain Other Agreements

  	
  65

  
	
  SECTION
  6.07.

  	
  Certain
  Financial Covenants

  	
  66

  
	
  SECTION
  6.08.

  	
  Margin
  Stock

  	
  66

  
	
  SECTION
  6.09.

  	
  Investments,
  Loans, Advances, Guarantees and Capital Contributions

  	
  66

  
	
  SECTION
  6.10.

  	
  Restricted
  Payments; Certain Payments of Indebtedness

  	
  69

  
	
  SECTION
  6.11.

  	
  Limitations
  on Conduct of Business

  	
  71

  
	
  SECTION
  6.12.

  	
  Concerning
  Janus Capital International Limited

  	
  71

  
	
   

  
	
  ARTICLE VII

  
	
   

  
	
  EVENTS OF DEFAULT

  
	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  THE AGENT

  
	
   

  
	
  ARTICLE IX

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  
	
  SECTION
  9.01.

  	
  Notices

  	
  78

  
	
  SECTION
  9.02.

  	
  Survival
  of Agreement

  	
  79

  
	
  SECTION
  9.03.

  	
  Effectiveness

  	
  79

  
	
  SECTION
  9.04.

  	
  Successors
  and Assigns

  	
  79

  
	
  SECTION
  9.05.

  	
  Expenses;
  Indemnity

  	
  82

  
	
  SECTION
  9.06.

  	
  Right
  of Setoff

  	
  83

  
	
  SECTION
  9.07.

  	
  Applicable
  Law

  	
  83

  
	
  SECTION
  9.08.

  	
  Waivers;
  Amendment

  	
  84

  
	
  SECTION
  9.08A.

  	
  Certain
  Amendments

  	
  84

  
	
  SECTION
  9.09.

  	
  Interest
  Rate Limitation

  	
  85

  
	
  SECTION
  9.10.

  	
  Entire
  Agreement

  	
  85

  
	
  SECTION
  9.11.

  	
  WAIVER
  OF JURY TRIAL

  	
  85

  
	
  SECTION
  9.12.

  	
  Severability

  	
  86

  
	
  SECTION
  9.13.

  	
  Counterparts

  	
  86

  
	
  SECTION
  9.14.

  	
  Headings

  	
  86

  
	
  SECTION
  9.15.

  	
  Jurisdiction;
  Consent to Service of Process

  	
  86

  
	
  SECTION
  9.16.

  	
  Confidentiality;
  Material Non-Public Information

  	
  87

  
	
  SECTION
  9.17.

  	
  Electronic
  Communications

  	
  88

  
	
  SECTION
  9.18.

  	
  Patriot
  Act

  	
  89

  
	
  SECTION
  9.19.

  	
  No
  Fiduciary Relationship

  	
  89

  
	
  SECTION 9.20.

  	
  Release of Liens and
  Guarantees

  	
  89

  



 


iii

















 


	
  Schedule
  2.01

  	
  Commitments

  	
   

  
	
  Schedule
  3.07

  	
  Subsidiaries

  	
   

  
	
  Schedule
  3.08

  	
  Litigation

  	
   

  
	
  Schedule
  6.01

  	
  Existing
  Indebtedness

  	
   

  
	
  Schedule
  6.02

  	
  Liens

  	
   

  
	
  Schedule
  6.09

  	
  Investments

  	
   

  



 


	
  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 Assumption

  	
   

  
	
  Exhibit
  C

  	
  Form
  of Compliance Certificate

  	
   

  
	
  Exhibit
  D

  	
  Form
  of Guarantee and Collateral Agreement

  	
   

  
	
  Exhibit
  E

  	
  Form
  of Global Intercompany Note

  	
   

  
	
  Exhibit F

  	
  Form of Intercompany
  Indebtedness Subordination Agreement

  	
   

  



 


iv

















 


FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT
FACILITY AGREEMENT dated as of October 19, 2005, as amended and restated as of June
1, 2007, as further amended and restated as of June 12, 2009 (as it may be
amended, supplemented or otherwise modified from time to time, this “Agreement”),
among JANUS CAPITAL GROUP INC., a Delaware corporation (the “Borrower”);
the LENDERS party hereto; CITIBANK, N.A., as the Agent; and JPMORGAN CHASE
BANK, N.A., as the Syndication Agent.


 


On October 19, 2005, the
Borrower, certain lenders party thereto, Citibank, N.A., as administrative
agent and swingline lender, and JPMorgan Chase Bank, N.A., as syndication
agent, entered into a credit agreement, which credit agreement was amended and
restated as of June 1, 2007 (as so amended and restated, the “Existing
Credit Agreement”), pursuant to which the lenders party thereto agreed to
extend credit to the Borrower.


 


The Borrower has requested
that the Lenders amend and restate the Existing Credit Agreement to be in the
form hereof, subject to the terms and conditions set forth herein and in the
Amendment Agreement dated as of June 12, 2009, among the Borrower, the Lenders
party thereto and the Agent (the “Amendment Agreement”).


 


Accordingly, as of the
Restatement Effective Date, the Existing Credit Agreement is amended and
restated to be in the form hereof.


 


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 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 in a form
supplied by the Agent.


 


“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 Equity Interests of any class
representing 15% or more of the issued and outstanding Equity Interests of such
class.


 


“Agent” shall mean
Citibank, N.A., in its capacity as administrative and collateral agent under
the Loan Documents, and its successors in such capacity as provided in Article VIII.


 


“Agent’s Fees” shall
have the meaning assigned to such term in Section 2.06(b).


 


“Agreement” shall
have the meaning assigned to such term in the preamble hereto.


 


“Alternate Base Rate”
shall mean, for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1.00%) equal to the greatest of (a) the Prime Rate in effect
on such day, (b) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1.00%, and (c) the Adjusted LIBO Rate on such day (or if such day is not
a Business Day, the immediately preceding Business Day) for a deposit in
dollars with a maturity of one month, plus 1.00%.  For purposes of clause (c) above, the
Adjusted LIBO Rate on any day shall be based on the rate per annum appearing on
the Reuters “LIBOR01” screen (or on any successor or substitute screen of such
service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such screen 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
such day for deposits in dollars with a maturity of one month.  If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error) that
(i) 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 definition of such term, Alternate Base Rate shall be
determined without regard to clause (b) above until the circumstances giving
rise to such inability no longer exist, or (ii) reasonable means do not exist
for ascertaining the Adjusted LIBO Rate (determined as set forth above), the
Alternate Base Rate shall be determined without regard to clause (c) above
until such reasonable means again exist. 
Any change in the Alternate Base Rate due to a change in the Prime Rate,
the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective
from and including the effective date of such change in the Prime Rate, the
Federal Funds Effective Rate or the Adjusted LIBO Rate, as the case may be.


 


“Amendment Agreement”
shall have the meaning set forth in the recitals to this Agreement.


 


“Applicable Percentage”
shall mean, with respect to any sale, transfer or other disposition of Equity
Interests of INTECH or Perkins pursuant to Section 6.04(c)(iv), the quotient,
expressed as a percentage, obtained by dividing (a) the excess, if 


 


2

















 


any, of (i) the lesser of (A)
Consolidated EBITDA for the period of four consecutive fiscal quarters of the
Borrower ended on or most recently prior to the Restatement Effective Date or (B)
Consolidated EBITDA for the period of four consecutive fiscal quarters of the
Borrower ended on or most recently prior to the date such sale, transfer or
other disposition is consummated (such lesser Consolidated EBITDA being
referred to as the “Reference Consolidated EBITDA”) over (ii) the
Reference Consolidated EBITDA re-calculated on a pro forma basis as if such
sale, transfer or other disposition had occurred on the first day of the period
covered thereby (the “Pro Forma Reference Consolidated EBITDA”), all
calculated in good faith by a Financial Officer of the Borrower in accordance
with Article 11 of Regulation S-X under the Securities Act of 1933, by (b) the
Reference Consolidated EBITDA; provided that if the Reference
Consolidated EBITDA shall be less than the Pro Forma Reference Consolidated
EBITDA, the Applicable Percentage shall be deemed to be zero.


 


“Applicable Rate”
shall mean, for any day on or after the Restatement Effective Date, with
respect to any ABR Loan, any Eurodollar Standby Loan or the Commitment Fees
payable hereunder, the applicable rate per annum set forth below under the
caption “ABR Spread”, “Eurodollar Standby Spread” or “Commitment Fee Rate”, as
the case may be, based upon the ratings by Moody’s and S&P, respectively,
applicable on such day to the Index Debt and the Leverage Ratio as of the end
of the most recent fiscal quarter of the Borrower for which consolidated
financial statements have been delivered pursuant to Section 5.04(a) or
5.04(b); provided that until the date of the delivery of the
consolidated financial statements of the Borrower pursuant to Section 5.04(b) for
the fiscal quarter ended June 30, 2009, the Applicable Rate shall be based on
the rates per annum set forth in Category 2:


 


	
  Index
  Debt Ratings/

  Leverage Ratio

  	
   

  	
  ABR Spread

  	
   

  	
  Eurodollar

  Standby Spread

  	
   

  	
  Commitment

  Fee Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 1

   

  BBB/Baa2 or higher

   

  Less than 3.50:1.00

  	
   

  	
  2.250

  	
  %

  	
  3.250

  	
  %

  	
  0.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 2

   

  BBB-/Baa3

   

  Greater than or equal to 3.50:1.00 and less than
  4.50:1.00

  	
   

  	
  2.750

  	
  %

  	
  3.750

  	
  %

  	
  0.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 3

   

  BB+/Ba1

   

  Greater than or equal to 4.50:1.00 and less than
  6.00:1.00

  	
   

  	
  3.500

  	
  %

  	
  4.500

  	
  %

  	
  0.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 4

   

  BB/Ba2

   

  Greater than or equal to 6.00:1.00 and less than
  7.00:1.00

  	
   

  	
  4.500

  	
  %

  	
  5.500

  	
  %

  	
  0.750

  	
  %

  



 


3

















 


	
  Index
  Debt Ratings/

  Leverage Ratio

  	
   

  	
  ABR Spread

  	
   

  	
  Eurodollar

  Standby Spread

  	
   

  	
  Commitment

  Fee Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 5

   

  Lower than BB/Ba2 or unrated

   

  Greater than or equal to 7.00:1.00

  	
   

  	
  5.000

  	
  %

  	
  6.000

  	
  %

  	
  0.750

  	
  %

  



 


For purposes of the
foregoing, (a) the applicable Category shall be based upon the lower of (i) the
Category indicated by the ratings of the Index Debt and (ii) the Category
indicated by the Leverage Ratio (with Category 1 being considered the “highest”
Category); (b) if either Moody’s or S&P shall not have in effect a rating
for the Index Debt, then the Applicable Rate shall be determined by reference
to the rating of the other rating agency; (c) if neither Moody’s nor S&P
shall have in effect a rating for the Index Debt, then the Applicable Rate
shall be determined solely by reference to the Leverage Ratio; (d) if the
ratings established or deemed to have been established by Moody’s and S&P
for the Index Debt shall fall within different Categories, the Applicable Rate
shall be determined by reference to the higher 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; (e) if the ratings
established or deemed to have been established by Moody’s and S&P for the
Index Debt shall be changed (other than as a result of a change in the rating
system of Moody’s 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; and (f) each change in the Leverage Ratio shall be given
effect commencing on and including the first Business Day following the date of
delivery to the Agent of the consolidated financial statements as of the end of
and for the applicable fiscal quarter and ending on the date immediately
preceding the effective date of the next such change; provided that the
Applicable Rate shall be determined by reference to Category 5 if the Borrower
fails to deliver the consolidated financial statements required to be delivered
by it pursuant to Section 5.04(a) or 5.04(b), during the period from the last
day on which such statements are permitted to be delivered in accordance with Section
5.04(a) or 5.04(b), as the case may be, until such consolidated financial
statements are delivered.  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 Moody’s or S&P shall change, the Borrower and the Lenders
shall negotiate in good faith to amend this definition to reflect such changed
rating system 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, solely by reference to the Leverage Ratio).


 


“Arrangers” shall
mean Citigroup Global Markets Inc. and J.P. Morgan Securities Inc.


 


4
















 


“Assignment and
Assumption” shall mean an assignment and assumption entered into by a
Lender and an Eligible Assignee, with the consent of any Person whose consent
is required by Section 9.04, in the form of Exhibit B or any other form
approved by the Agent.


 


“Attributable Debt”
shall mean, at any date, in respect of any lease entered into by the Borrower
or any Subsidiary as part of a Sale and Leaseback Transaction, (a) if
obligations under such lease are Capitalized Lease Obligations, the capitalized
amount thereof that would appear on a balance sheet of the Borrower or such
Subsidiary prepared as of such date in accordance with GAAP, and (b) if
obligations under such lease are not Capitalized Lease Obligations, the
capitalized amount of the remaining lease payments under such lease that would
appear on a balance sheet of the Borrower or such Subsidiary prepared as of
such date in accordance with GAAP if such obligations were accounted for as
Capitalized Lease Obligations.


 


“B Share Fees” shall
mean (a) the contingent deferred sales charges payable to the Borrower 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 Borrower, in each case payable at the times and in the amounts
described in the Janus Capital Funds plc prospectus dated September 29, 2006
and the Janus Selection prospectus dated September 29, 2006, 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 preamble to this Agreement.


 


“Borrowing” shall
mean (a) a Standby Borrowing or (b) a Competitive Borrowing.


 


“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 New York corporation.


 


“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 


 


5

















 


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.


 


“CFC” shall mean a
“controlled foreign corporation” within the meaning of Section 957(a) of the
Code.


 


A “Change in Control”
shall be deemed to have occurred if, at any time, (a) less than a majority of
the members of the board of directors of the Borrower shall be (i) individuals
who are members of such board on the Restatement Effective Date or (ii) individuals
whose election, or nomination for election by the Borrower’s stockholders, was
approved by a vote of at least a majority of the members of the board then in
office who are individuals described in clause (i) above or this clause (ii) or
(b) any Person or any two or more Persons acting as a partnership, limited
partnership, syndicate or other group for the purpose of acquiring, holding,
voting or disposing of Equity Interests in the Borrower shall become, according
to public announcement or filing, the “beneficial owner” (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended), directly or indirectly,
of Equity Interests in the Borrower representing 35% or more (calculated in
accordance with such Rule 13d-3) of the combined voting power of the Borrower’s
then outstanding voting Equity Interests.


 


“Charges” shall have
the meaning assigned to such term in Section 9.09.


 


“Citigroup Parties”
shall have the meaning assigned to such term in Section 9.17(e).


 


“Closing Date” shall
mean June 1, 2007, which is the date on which the conditions specified in Section
4.01 of the Existing Credit Agreement were satisfied.


 


“Code” shall mean the
Internal Revenue Code of 1986, as the same may be amended from time to time.


 


“Collateral” shall
mean any and all assets, whether real or personal, tangible or intangible, on
which Liens are purported to be granted pursuant to the Security Documents as
security for the Obligations.


 


“Collateral Agreement”
shall mean the Guarantee and Collateral Agreement among the Borrower, the other
Loan Parties and the Agent, substantially in the form of Exhibit E, together
with all supplements thereto.


 


“Collateral and Guarantee
Requirement” shall mean, at any time, the requirement that:


 


6

















 


(a)
 the Agent shall have received from the
Borrower and each Designated Subsidiary either (i) a counterpart of the
Collateral Agreement duly executed and delivered on behalf of such Person or (ii)
in the case of any Person that becomes a Designated Subsidiary after the
Restatement Effective Date, a supplement to the Collateral Agreement, in the
form specified therein, duly executed and delivered on behalf of such Person,
together with such documents and legal opinions as the Agent may reasonably
request;


 


(b)
 all Equity Interests in the Subsidiaries
(other than Janus Capital Management LLC and the Excluded Subsidiary) owned by
or on behalf of any Loan Party shall have been pledged pursuant to the
Collateral Agreement and, in the case of Equity Interests in any Foreign
Subsidiary, where reasonably requested by the Agent in connection with a pledge
of such Equity Interests, a Foreign Pledge Agreement (provided that the
Loan Parties shall not be required to pledge more than 65% of the outstanding
voting Equity Interests of any CFC), and the Agent shall, to the extent
required by the Collateral Agreement, have received certificates or other
instruments representing all such Equity Interests, together with undated stock
powers or other instruments of transfer with respect thereto endorsed in blank,
together with such documents and legal opinions as the Agent may reasonably
request;


 


(c)
 (i) all Indebtedness of the Borrower and
each Subsidiary and (ii) all Indebtedness of any other Person in a principal
amount of $3,000,000 or more that, in the case of clauses (i) and (ii) above,
is owing to any Loan Party shall be evidenced by a promissory note (which may
be a global note in substantially the form of Exhibit F or otherwise in a form
reasonably satisfactory to the Agent) that shall have been pledged pursuant to
the Collateral Agreement, and the Agent shall have received all such promissory
notes, together with undated instruments of transfer with respect thereto
endorsed in blank;


 


(d)
 all documents and instruments, including
Uniform Commercial Code financing statements, required by applicable law or
reasonably requested by the Agent to be filed, registered or recorded to create
the Liens intended to be created by the Security Documents and perfect such
Liens to the extent required by, and with the priority required by, the
Security Documents, shall have been filed, registered or recorded or delivered
to the Agent for filing, registration or recording;


 


(e)
 the Agent shall have received (i) counterparts
of a Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title insurance
company insuring the Lien of each such Mortgage as a valid and enforceable
first Lien on the Mortgaged Property described therein, free of any other Liens
except as permitted by Section 6.02, together with such endorsements,
coinsurance and reinsurance as the Agent may reasonably request, (iii) if any
Mortgaged Property is located in an area determined by the Federal Emergency
Management Agency to have special 


 


7

















 


flood hazards, evidence of
such flood insurance as may be required under applicable law, including
Regulation H of the Board, and (iv) such legal opinions and other documents as
the Agent may reasonably request with respect to any such Mortgage or Mortgaged
Property;


 


(f)
 with respect to (i) each deposit account
(other than (A) any Excluded Deposit Account and (B) deposit accounts the daily
balance in which does not at any time exceed $2,000,000 for any such account or
$5,000,000 in the aggregate for all such accounts) and (ii) each securities
account (other than any Excluded Securities Account), in the case of clauses (i)
and (ii) above, maintained by any Loan Party with any depositary bank or
securities intermediary the assets in which are owned by any Loan Party, the
Agent shall have received a counterpart of a Control Agreement, duly executed
and delivered by the applicable Loan Party and such depositary bank or
securities intermediary, as the case may be; and


 


(g)
 each Loan Party shall have obtained all
consents and approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it is a party, the
performance of its obligations thereunder and the granting by it of the Liens
thereunder.


 


The foregoing definition
shall not require the creation or perfection of pledges of or security
interests in, or the obtaining of title insurance, legal opinions or other
deliverables with respect to, particular assets of the Loan Parties, or the
provision of a Guarantee by any Subsidiary that is not a Loan Party, if and to
the extent that, and for so long as, (i) the Agent, in consultation with the
Borrower, determines that the cost or other burden to the Borrower and the
Subsidiaries of creating or perfecting such pledges or security interests in
such assets (including in any real property owned in fee by any Loan Party), or
obtaining such title insurance, legal opinions or other deliverables in respect
of such assets or the provision of such Guarantee (taking into account any
adverse tax consequences to the Borrower and the Subsidiaries (including the
imposition of withholding or other material Taxes)), shall be excessive in view
of the benefits to be obtained by the Lenders therefrom or (ii) the applicable
Loan Party or the applicable Subsidiary shall be prohibited by law or
regulation from creating or perfecting such security interests in such assets
or providing such Guarantee, as the case may be.  The Agent may grant extensions of time for
the creation and perfection of security interests in or the obtaining of title
insurance, legal opinions or other deliverables with respect to particular
assets (including extensions beyond the Restatement Effective Date) where it
determines that such action cannot be accomplished or accomplished without
undue effort or expense by the time or times at which it would otherwise be
required to be accomplished by this Agreement or the Security Documents.


 


“Commitment” shall
mean, with respect to each Lender, the commitment of such Lender to make
Standby Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.11 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 


 


8

















 


on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Commitment, as applicable.  As of the
Restatement Effective Date, the aggregate amount of the Lenders’ Commitments is
$125,000,000.


 


“Commitment Fee”
shall have the meaning assigned to such term in Section 2.06(a).


 


“Communications”
shall have the meaning assigned to such term in Section 9.17(a).


 


“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 written notification made by the
Borrower pursuant to Section 2.03(d), which shall be in the form of Exhibit A-4.


 


“Competitive Bid Rate”
shall mean, as to any Competitive Bid made by a Lender, (a) in the case of a
Eurodollar Competitive Loan, the Margin and (b) in the case of a Fixed Rate
Loan, the fixed rate of interest, in each case, offered by the Lender making
such Competitive Bid with respect to such Loan.


 


“Competitive Bid Request”
shall mean a written request made by the Borrower pursuant to Section 2.03(a),
which shall be 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 pursuant to the bidding procedure
set forth in Section 2.03.


 


“Competitive Loan”
shall mean a loan from a Lender to the Borrower pursuant to the bidding
procedure set forth 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 April 2009.


 


“Consolidated EBITDA”
shall mean, for any period, Consolidated Net Income for such period, plus
(a) without duplication and to the extent deducted (or in the case of (v) below,
not included) in determining such Consolidated Net Income, the sum for such
period of (i) Consolidated Interest Expense, (ii) provision for taxes for the
Borrower and the Consolidated Subsidiaries, (iii) depreciation expense or
amortization expense (including amortization expense relating to prepaid sales
commissions, but net of the amount of sales commissions paid during such
period), (iv) impairment charges on the securities of Stanfield Victoria
Funding LLC in an aggregate amount for all periods not in excess of
$70,000,000, (v) cash payments received by the Borrower upon the termination of
hedging programs for the Borrower’s or any Consolidated Subsidiary’s mutual
fund unit awards program and (vi) realized losses from the sale of the
securities of 


 


9

















 


Stanfield Victoria Funding LLC
in an aggregate amount for all periods not in excess of $81,000,000,  minus (b) without duplication and to
the extent included in determining such Consolidated Net Income, gains from the
reversal of previously recognized impairment charges on the securities of
Stanfield Victoria Funding LLC in an aggregate amount for all periods not in
excess of $109,000,000, all 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 (a) the amortization of debt
discounts to the extent included in interest expense in accordance with GAAP, (b)
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 (c) 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 for such
period, (b) any gains for such period relating to the sale, transfer or other
disposition of any assets of the Borrower or any Consolidated Subsidiary (other
than in the ordinary course of business), (c) any costs, expenses or losses
incurred during such period (which for each annual period commencing on the
Closing Date or any anniversary thereof shall not exceed $200,000,000, and in
the aggregate for all such periods shall not exceed $600,000,000) consisting of
or relating or attributable to (i) the sale, transfer or other disposition, in
whole or in part, of any Subsidiary or other Affiliate of the Borrower, (ii) any
exchange, repayment, prepayment, purchase or redemption by the Borrower or any
Consolidated Subsidiary of the outstanding Indebtedness of the Borrower and (iii)
any fines, penalties, damages, or restitution or other settlement payments
related to regulatory investigations into trading practices in the mutual fund
industry, (d) any costs, expenses or losses incurred during such period
consisting of or relating or attributable to (i) non-cash write-downs of
goodwill and intangible assets and (ii) any non-cash amortization of long-term
incentive compensation, but giving effect to any net cash payments by the
Borrower and the Consolidated Subsidiaries relating to long-term incentive
compensation, and (e)(i) non-cash extraordinary losses, (ii) non-recurring cash
charges relating to severance expense, (iii) non-recurring cash charges
relating to the settlement of a dispute with a former employee of the Borrower
(in an aggregate amount for all periods not to exceed $5,000,000), (iv) unrealized
gains or losses in net investments in seed financing for early stage funds or
portfolios or (v) non-cash non-recurring restructuring charges, in each case
incurred during such period; provided that there shall be excluded the
income of (A) the Excluded Subsidiary and (B) any Consolidated Subsidiary that
is not wholly owned by the Borrower to the extent such income or such amounts
are attributable to the noncontrolling interest in such Consolidated
Subsidiary.


 


10

















 


“Consolidated Subsidiary”
shall mean each Subsidiary the financial statements of which are required to be
consolidated with the financial statements of the Borrower in accordance with
GAAP.


 


“Consolidated Total
Assets” shall mean at any date the total assets of the Borrower and the
Consolidated Subsidiaries at such date, determined on a consolidated basis 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; provided that, in determining Consolidated
Total Indebtedness at any date, any Indebtedness that, at such date,
constitutes Delayed Application Replacement Indebtedness in respect of any
other Indebtedness shall be disregarded to the extent the principal amount of
such other Indebtedness is included in Consolidated Total Indebtedness at such
date.


 


“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.


 


“Control Agreement”
shall mean, with respect to any deposit account or securities account maintained
by any Loan Party, a control agreement in form and substance reasonably
satisfactory to the Agent, duly executed and delivered by such Loan Party and the
depositary bank or the securities intermediary, as the case may be, with which
such account is maintained.


 


“Controlled Group”
shall mean all trades or businesses (whether or not incorporated) that,
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 of the Code.


 


“Default” shall mean
any event or condition which is, or upon notice, lapse of time or both would
constitute, an Event of Default.


 


“Delayed
Application Replacement Indebtedness” shall mean, in respect of any
Indebtedness (“Original Indebtedness”), Indebtedness that is incurred
for the purpose of refinancing or replacing such Original Indebtedness, but the
proceeds of which shall not have been applied to make such a refinancing or
replacement upon the incurrence thereof, if and for so long as (a) such
Indebtedness otherwise meets, with respect to such Original Indebtedness, the
requirements set forth in the definition of the term “Replacement Indebtedness”
and (b) all the proceeds of such Indebtedness are held in a deposit account of
the Borrower with respect to which the Agent shall have received counterparts
of a Control Agreement, duly executed by the Borrower and the depository bank
with which such deposit account is held, that shall provide that (A) the Agent
shall have a right of withdrawal with respect to such deposit account in the
event an Event of 


 


11

















 


Default
or any event that, upon the lapse of time would constitute an Event of Default,
under clause (b) or (c) of Article VII shall have occurred and be continuing,
and (B) the Borrower shall not have a right of withdrawal with respect to such
deposit account without the prior consent of the Agent (with the Agent hereby
consenting that the Borrower may withdraw funds from such account if (i) at the
time thereof, either (A) no Event of Default shall have occurred and be
continuing or (B)(1) no Event of Default, and no event that, upon lapse of time
would constitute an Event of Default, under clause (b) or (c) of Article VII
shall have occurred and be continuing and (2) no Loans shall be outstanding, (ii)
immediately following such withdrawal, such funds shall be applied to make any
such refinancing or replacement of such Original Indebtedness or to repay such
Indebtedness and (iii) the Borrower shall have delivered to the Agent a
certificate of a Financial Officer of the Borrower as to the matters set forth
in the preceding clauses (i) and (ii)); provided that any Indebtedness
that otherwise meets the requirements set forth in this definition shall cease
to be Delayed Application Replacement Indebtedness on the date that is 90 days
following the date of the incurrence thereof. 
The Borrower hereby grants to the Agent, for the benefit of the Secured
Parties, a security interest in each such deposit account and all moneys,
investments and other property at any times held in, or credited to, any such
deposit account, as collateral for the payment and performance of the
Obligations.


 


“Designated Subsidiary”
shall mean each Domestic Subsidiary, other than any Subsidiary that (a) has
assets with a total book value of $1,000,000 or less and (b) does not have any
Indebtedness outstanding.


 


“Disclosed Matter” shall
mean the existence or occurrence of any matter which has been disclosed by the
Borrower (a) on Schedule 3.08, (b) in its Annual Report on Form 10-K for the
fiscal year ended December 31, 2008, its Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2009 and any Current Report on Form 8-K filed
with or furnished to the Securities and Exchange Commission subsequent to the
date of the filing or furnishing of such Quarterly Report, in each case in the
form such report has been filed with or furnished to the Securities and
Exchange Commission prior to the Restatement Effective Date, or (c) 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.


 


“Disqualified Stock”
shall mean, with respect to any Person, any Equity Interest in such Person that
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable, either mandatorily or at the option of the holder
thereof), or upon the happening of any event or condition:


 


(a)
matures or is mandatorily redeemable (other than solely for Equity Interests in
such Person that do not constitute Disqualified Stock and cash in lieu of
fractional shares of such Equity Interests), whether pursuant to a sinking fund
obligation or otherwise;


 


12

















 


(b)
is convertible or exchangeable at the option of the holder thereof for
Indebtedness or Equity Interests (other than solely for Equity Interests in
such Person that do not constitute Disqualified Stock and cash in lieu of
fractional shares of such Equity Interests); or


 


(c)
is redeemable (other than solely for Equity Interests in such Person that do
not constitute Disqualified Stock and cash in lieu of fractional shares of such
Equity Interests) or is required to be repurchased by such Person or any of its
Affiliates, in whole or in part, at the option of the holder thereof;


 


in each case, on or prior to
the date 180 days after the Maturity Date; provided, however, that
an Equity Interest in any Person that would not constitute a Disqualified Stock
but for terms thereof giving holders thereof the right to require such Person
to redeem or purchase such Equity Interest upon the occurrence of an “asset
sale” or a “change of control” shall not constitute a Disqualified Stock if any
such requirement becomes operative only after repayment in full of all the
Loans and all other Loan Documents Obligations that are accrued and payable and
the termination or expiration of the Total Commitment.


 


“Domestic Subsidiary”
shall mean any Subsidiary incorporated or organized under the laws of the
United States of America, any State thereof or the District of Columbia.


 


“dollars” or “$”
shall mean lawful money of the United States of America.


 


“Eligible Assignee”
shall mean (a) a Lender, (b) an Affiliate of a Lender, or (c) any other Person
approved by (i) the Agent and (ii) unless an Event of Default has occurred and
is continuing at the time the applicable assignment is effected in accordance
with Section 9.04, the Borrower; provided, however, that none of (x)
the Borrower, (y) any Affiliate of the Borrower or (z) any investment manager,
any investment company or any similar entity that, in each case, is managed or
advised by the Borrower or an Affiliate of the Borrower 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 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.


 


“Equity Interests”
shall mean shares of capital stock, partnership interests, membership
interests, beneficial interests or other ownership interests, whether voting or
nonvoting, in a Person, and any warrants, options or other rights entitling the
holder thereof to purchase or acquire any of the foregoing.


 


“ERISA” shall mean
the Employee Retirement Income Security Act of 1974, as amended from time to
time.


 


13

















 


“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 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, other than pursuant to the
definition of the term “Alternate Base Rate”, at a rate determined by reference
to the Adjusted LIBO Rate in accordance with Article II.


 


“Event of Default”
shall have the meaning assigned to such term in Article VII.


 


“Excluded Deposit Account”
shall mean any deposit account maintained by any Loan Party with any depository
bank the funds in which are used solely for the payment of salaries and wages,
workers’ compensation and similar expenses.


 


“Excluded Securities”
shall mean securities owned by the Borrower or any Subsidiary that are held in
any Excluded Securities Account.


 


“Excluded Securities
Account” shall mean one or more securities accounts maintained by any Loan
Party with any securities intermediary that is, or that the Borrower determines
could be, a counterparty to one or more Specified Hedging Agreements with the
Borrower or any Subsidiary; provided that the net book value of the
cash, securities and other property maintained in all such securities accounts
shall not at any time exceed $55,000,000.


 


“Excluded Subsidiary”
shall mean Janus Capital Trust Manager Limited; provided that (a) Janus
Capital Trust Manager Limited shall be in compliance with Section 6.11 and (b) the
Board of Directors of Janus Capital Trust Manager Limited shall not be under
the Control of the Borrower (it being understood that the ownership of Equity
Interests in Janus Capital Trust Manager Limited shall not, in itself and
without regard to any other means of directing the management or policies of
Janus Capital Trust Manager Limited, be deemed to constitute Control).


 


“Excluded Taxes”
shall mean, with respect to any Recipient and without duplication, any of the
following:


 


14
















 


(a) 
Taxes imposed on any Recipient’s net income, or other similar Taxes imposed in
lieu thereof, and franchise Taxes imposed on such Recipient 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;


 


(b) 
Taxes attributable to such Recipient’s failure to comply with Section 2.19(f);
and


 


(c) 
U.S. Federal Taxes imposed by any law in effect at the time such Recipient
(other than an assignee under Section 2.20) becomes a party hereto or
designates a new lending office (except to the extent that, pursuant to Section 2.19(a),
amounts with respect to such Taxes were payable to (i) such Recipient’s
assignor immediately before such Recipient became a party hereto pursuant to an
assignment or (ii) such Recipient immediately before it designated such
new lending office).


 


“Existing Credit
Agreement” shall have the meaning assigned to such term in the recitals to
this Agreement.


 


“Federal Funds Effective
Rate” shall mean, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
on such next succeeding Business Day, the Federal Funds Effective Rate shall be
the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by it.


 


“Fee Letter” shall
mean, collectively, the letter agreement dated May 14, 2007, and the letter
agreement dated April 3, 2009, in each case, among the Borrower, the Agent
and Citigroup Global Markets Inc.


 


“Fees” shall mean the
Commitment Fee and the Agent’s Fees.


 


“Finance Subsidiary”
shall mean any 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 Person shall mean the chief financial officer, principal accounting
officer, treasurer, assistant treasurer, controller or assistant controller of
such Person.


 


“Fixed Rate Borrowing”
shall mean a Borrowing comprised of Fixed Rate Loans.


 


15

















 


“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.


 


“Foreign Pledge Agreement”
shall mean a pledge or charge agreement with respect to Equity Interests in a
Foreign Subsidiary, in form and substance reasonably satisfactory to the Agent.


 


“Foreign Subsidiary”
shall mean any Subsidiary that is not a Domestic Subsidiary.


 


“FSA” shall mean the
United Kingdom Financial Services Authority.


 


“GAAP” shall mean
United States generally accepted accounting principles, applied on a consistent
basis.


 


“Governmental Authority”
shall mean the government of the United States of America, any other nation or
any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supra-national body exercising such function, such as the European Union or
the European Central Bank).


 


“Granting Lender”
shall have the meaning assigned to such term in Section 9.04(f).


 


“Guarantee” of or by
any Person (the “guarantor”) means any obligation, contingent or otherwise,
of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any monetary
obligation of the guarantor, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness
or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account
party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided that the term
“Guarantee” shall not include endorsements for collection or deposit in the
ordinary course of business.


 


“Hedging Agreement”
shall mean any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by
reference to, one or more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value, any similar transaction
or any combination of the foregoing transactions; provided that no
phantom stock or similar plan providing 


 


16

















 


for payments only on account
of services provided by current or former directors, officers, employees or
consultants of the Borrower or any Subsidiary shall be a Hedging Agreement.


 


“Hybrid Capital Security”
shall mean any hybrid capital security issued by the Borrower that has been
accorded a “percentage of equity” or like treatment by Moody’s or S&P.


 


“Hybrid Capital Security
Equity Percentage” shall mean, with respect to any Hybrid Capital Security,
the percentage accorded equity treatment by Moody’s or S&P for such Hybrid
Capital Security, as determined by such rating agencies at the time such Hybrid
Capital Security is issued.  For purposes
of the foregoing, if the Hybrid Capital Security Equity Percentage established
or deemed to have been established by Moody’s and S&P for any Hybrid
Capital Security shall differ, then the Hybrid Capital Security Equity
Percentage shall be deemed to be the higher of the two Hybrid Capital Security
Equity Percentages.


 


“IFRS” shall mean
International Financial Reporting Standards, applied on a consistent basis.


 


“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 (i) accounts
payable arising in the ordinary course of such Person’s business on terms
customary in the trade and (ii) deferred compensation, (d) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not such Indebtedness has
been assumed (with the amount of the resulting Indebtedness of such Person
being valued, as of the date of determination, at the lesser of (i) the
amount of Indebtedness so secured and (ii) the fair market value of the
property securing such Indebtedness), (e) all Capitalized Lease
Obligations of such Person, (f) all Guarantees by such Person of
Indebtedness of others, (g) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty, (h) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances, (i) all Attributable Debt in respect of
any Sale and Leaseback Transaction of such Person and (j) all Disqualified
Stock in such Person, valued, as of the date of determination, at the greater
of (i) the maximum aggregate amount that would be payable upon maturity,
redemption, repayment or repurchase thereof (or of Disqualified Stock or
Indebtedness into which such Disqualified Equity Interests are convertible or
exchangeable) and (ii) the maximum liquidation preference of such
Disqualified Stock.  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.


 


17

















 


“Indemnified
Taxes” shall mean Taxes (including Other Taxes) other than Excluded Taxes.


 


“Indemnitee” shall
have the meaning assigned to such term in Section 9.05(b).


 


“Index Debt” shall
mean 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.


 


“INTECH” shall mean
INTECH Investment Management LLC, a Delaware limited liability company
(formerly known as Enhanced Investment Technologies, LLC).


 


“Intellectual Property”
shall have the meaning assigned to such term in the Collateral Agreement.


 


“Interest Coverage 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) Consolidated Interest Expense for such period.


 


“Interest Election
Request” shall have the meaning assigned to such term in Section 2.05(b).


 


“Interest Payment Date”
shall mean, (a) with respect to any ABR Loan, the last day of each March,
June, September and December, and (b) with respect to any
Eurodollar Loan or any Fixed Rate Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part 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.


 


“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, and (b) 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 offers to
make the Fixed Rate Loans comprising such Borrowing were extended, which shall
not be later than 360 days after the date of such Borrowing; provided
that (i) 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 Borrowings 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, and (ii) any Interest
Period that commences on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last 


 


18

















 


Business Day of the last
calendar month of such Interest Period. 
For purposes hereof, the date of a Borrowing initially shall be the date
on which such Borrowing is made and, in the case of a Standby Borrowing,
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.


 


“Investment” shall
mean, with respect to a specified Person, any Equity Interests, evidences of
Indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, or any capital contribution or loans or
advances (other than advances made in the ordinary course of business that
would be recorded as accounts receivable on the balance sheet of the specified
Person prepared in accordance with GAAP) to, Guarantees of any Indebtedness or
other obligations of, or any other investment in, any other Person that are
held or made by the specified Person. 
The amount, as of any date of determination, of (a) any Investment
in the form of a loan or an advance shall be the principal amount thereof
outstanding on such date, (b) any Investment in the form of a Guarantee
shall be the principal amount outstanding on such date of Indebtedness or other
obligation guaranteed thereby (or, in the case of a Guarantee of an obligation
that does not have a principal amount, the maximum monetary exposure of the
guarantor as of such date under such Guarantee (as determined reasonably and in
good faith by a Financial Officer of the Borrower)), (c) any Investment in
the form of a transfer of cash or other property by the investor to the
investee, including any such transfer in the form of a capital contribution,
shall be the amount of such cash or the fair market value (as determined
reasonably and in good faith by a Financial Officer of the Borrower) of such
other property as of the time of the transfer, without any adjustment for
increases or decreases in value of, or write-ups, write-downs or write offs
with respect to, such Investment, (d) any Investment (other than any
Investment referred to in clause (a), (b) or (c) above) by the
specified Person in the form of a purchase or other acquisition for value of
any Equity Interests, evidences of Indebtedness or other securities of any
other Person shall be the original cost of such Investment (including any
Indebtedness assumed in connection therewith), plus the cost of all additions,
as of such date, thereto, and minus the amount, as of such date, of any portion
of such Investment repaid to the investor in cash as a repayment of principal
or a return of capital, as the case may be, but without any other adjustment
for increases or decreases in value of, or write-ups, write-downs or write-offs
with respect to, such Investment, and (e) any Investment (other than any
Investment referred to in clause (a), (b), (c) or (d) above) by the
specified Person in any other Person resulting from the issuance by such other
Person of its Equity Interests to the specified Person shall be the fair market
value (as determined reasonably and in good faith by a Financial Officer of the
Borrower) of such Equity Interests at the time of the issuance thereof.


 


“IP Security Agreements”
shall have the meaning assigned to such term in the Collateral Agreement.


 


“IRS”
shall mean the United States Internal Revenue Service.


 


“Janus Capital
International Limited” shall mean Janus Capital International Limited, a
company incorporated under the laws of England and Wales.


 


19

















 


“Janus Capital Management
LLC” shall mean Janus Capital Management LLC, a Delaware limited liability
company.


 


“Janus Capital Trust
Manager Limited” shall mean Janus Capital Trust Manager Limited, an Irish
single-member private company limited by shares.


 


“Janus International
Holding LLC” shall mean Janus International Holding LLC, a Nevada limited
liability company.


 


“JCIL
Distributions Amount” shall mean, at any time, the aggregate amount of
dividends and other Restricted Payments made by Janus Capital International
Limited to Janus International Holding LLC in cash since the Restatement
Effective Date and on or prior to such time.


 


“Lenders”
shall mean the Persons listed on Schedule 2.01 and any other Person that
shall have become a party hereto pursuant to an Assignment and Assumption,
other than any such Person that shall have ceased to be a party hereto pursuant
to an Assignment and Assumption.


 


“Leverage Ratio”
shall mean, on any date, the ratio of (a) Consolidated Total Indebtedness
as of such date, excluding, to the extent otherwise included therein, for each
Hybrid Capital Security the product obtained by multiplying (i) the
aggregate amount of such Hybrid Capital Security outstanding as of such date by
(ii) the Hybrid Capital Equity Security Percentage for such Hybrid Capital
Security 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 the Reuters “LIBOR01” screen (or on any successor or
substitute screen of such service, or any successor to or substitute for such
service, providing rate quotations comparable to those currently provided on
such screen of such service, as determined by the Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period.  In the event that such
rate is not available at such time for any reason, then the “LIBO Rate”
with respect to such Eurodollar Borrowings for such Interest Period shall be
the average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the rate per annum at which
dollar deposits 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.


 


20

















 


“Lien” shall mean,
with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, charge, security interest or other encumbrance on, in or of such
asset, including any agreement to provide any of the foregoing and any
arrangement entered into for the purpose of making particular assets available
to satisfy any Indebtedness or other obligation and having the effect of any of
the foregoing, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) 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. For the avoidance of doubt, the term “Lien” shall not include
licenses of Intellectual Property.


 


“LLC Guarantee” shall
mean the Guarantee Agreement dated as of June 1, 2007, 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 or a Fixed Rate Loan, each as permitted hereby.


 


“Loan Document
Obligations” shall have the meaning assigned to such term in the Collateral
Agreement.


 


“Loan Documents”
shall mean this Agreement, the Amendment Agreement, the Collateral Agreement,
the other Security Documents, the Fee Letter and the LLC Guarantee.


 


“Loan Parties” shall
mean the Borrower and the Subsidiary Loan Parties.


 


“Long-Term Assets Under
Management” shall mean, as of the close of business in New York City on any
Business Day, the daily total of long-term assets under management of the
Borrower and the Consolidated Subsidiaries on such date (excluding money market
fund assets), determined in a manner consistent with the calculation
methodology reported in the Borrower’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2008 (as the same may be amended or
restated to correct any misstatements therein).


 


“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”
shall mean a material adverse effect on (a) the business, assets,
liabilities, operations, financial condition or prospects of the Borrower and
the Subsidiaries, taken as a whole, (b) the ability of the Borrower or any
other Loan Party to perform any of its obligations under any Loan Document or (c) the
rights of or 


 


21

















 


benefits available to the
Lenders under any Loan Document; provided that, for purposes of clause (a) above,
no Disclosed Matter shall constitute a Material Adverse Effect.


 


“Material Indebtedness”
shall mean Indebtedness (other than the Loans and Guarantees under the Loan
Documents) in an aggregate principal amount of $25,000,000 or more or
obligations in respect of one or more Hedging Agreements in an aggregate
principal amount of $25,000,000 or more, in either case, of any one or more of
the Borrower and the Subsidiaries.  For
purposes of determining Material Indebtedness, the “principal amount” of the
obligations of the Borrower or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be required
to pay if such Hedging Agreement were terminated at such time.


 


“Maturity Date” shall
mean December 1, 2010.


 


“Maximum Availability”
shall mean, for any day, the applicable dollar amount set forth below based
upon the dollar amount of Long-Term Assets Under Management:


 


	
  Long-Term Assets Under Management

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Category 1

   

  Greater than or equal to $105,000,000,000:

  	
   

  	
  $

  	
  125,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Category 2

   

  Less than $105,000,000,000 and greater than or equal
  to $100,000,000,000:

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Category 3

   

  Less than $100,000,000,000 and greater than or equal
  to $95,000,000,000:

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Category 4

   

  Less than $95,000,000,000 and greater than or equal
  to $85,000,000,000:

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Category 5

   

  Less than $85,000,000,000

  	
   

  	
  $

  	
  0

  	
   

  



 


For purposes of the
foregoing, Long-Term Assets Under Management shall be determined (a) as of
the Restatement Effective Date, by reference to the certificate of the chief
financial officer of the Borrower delivered pursuant to Section 3(a)(iii) of
the Amendment Agreement, and (b) as of any day thereafter, subject to the
immediately following sentence, by reference to the certificate most recently
delivered pursuant to Section 5.04(g), 5.04(h) or 5.04(i).  Each change in Maximum Availability resulting
from a change in Long-Term Assets Under Management from one Category to another
shall become effective only if Long-Term Assets Under Management shall have
been at a level 


 


22

















 


indicating a new Category
for five consecutive Business Days (and shall become effective as of the day
immediately following such fifth consecutive Business Day).


 


“Maximum Rate” shall
have the meaning assigned to such term in Section 9.09.


 


“Minimum AUM” shall
mean $80,000,000,000.


 


“Moody’s” shall mean
Moody’s Investors Service, Inc.


 


“Mortgage” shall mean
a mortgage, deed of trust, assignment of leases and rents, leasehold mortgage
or other security document granting a Lien on any Mortgaged Property to secure
the Obligations.  Each Mortgage shall be
reasonably satisfactory in form and substance to the Agent.


 


“Mortgaged Property”
shall mean each parcel of real property owned in fee by a Loan Party, and the
improvements thereto, that has a book or fair market value of $1,000,000 or
more.


 


“Multiemployer Plan”
shall mean 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.


 


“Net Proceeds” shall
mean, with respect to any event (a) the cash proceeds received in respect
of such event, including any cash received in respect of any noncash proceeds,
but only as and when received, net of (b) the sum, without duplication, of
(i) all reasonable fees and out-of-pocket expenses paid in connection with
such event by the Borrower and the Subsidiaries to Persons that are not
Affiliates of the Borrower or any Subsidiary (including, in the case of the
issuance of any preferred Equity Interests in the Borrower, underwriting
discounts and commissions paid in connection therewith), (ii) in the case
of a sale, transfer or other disposition of any asset, the amount of all
payments required to be made by the Borrower and the Subsidiaries as a result
of such event to repay secured Indebtedness (other than Loans) and (iii) the
amount of all Taxes paid (or reasonably estimated to be payable) by the
Borrower and the Subsidiaries, and the amount of any reserves established by
the Borrower and the Subsidiaries to fund contingent liabilities reasonably
estimated to be payable, in each case during the year that such event occurred
or the next succeeding year and that are directly attributable to such event
(as determined reasonably and in good faith by a Financial Officer of the
Borrower).


 


“New Lending Office”
shall have the meaning assigned to such term in Section 2.19(f).


 


“Obligations” shall
have the meaning assigned to such term in the Collateral Agreement.


 


“Other Taxes” shall
mean all present or future stamp, court, documentary, excise, property, intangible,
recording, filing or similar Taxes that arise from any 


 


23

















 


payment made under, from the
execution, delivery, performance, enforcement or registration of, or from the
registration, receipt or perfection of a security interest under, or otherwise
with respect to, any Loan Document.


 


“Participant
Register” shall have the meaning assigned to such term in Section 9.04(e).


 


“Patriot Act” shall
have the meaning assigned to such term in Section 9.18.


 


“PBGC” shall mean the
Pension Benefit Guaranty Corporation referred to and defined in ERISA.


 


“Perfection Certificate”
shall mean the Perfection Certificate delivered on the Restatement Effective
Date pursuant to Section 3(d) of the Amendment Agreement.


 


“Perkins” shall mean
Perkins Investment Management LLC, a Delaware limited liability company
(formerly known as Perkins, Wolf, McDonnell and Company LLC).


 


“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 to
the Borrower by such third parties; provided that the Agent shall
be reasonably 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 collectability 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 reasonably 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 Investments”
shall mean:


 


(a) 
direct obligations of, or obligations as to which the principal of and interest
on are unconditionally guaranteed by, the United States of America (or any
agency thereof to the extent such obligations are backed by the full faith and 


 


24




















 


credit of the United States
of America), in each case maturing within one year from the date of acquisition
thereof;


 


(b) 
investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit
rating obtainable from S&P or Moody’s;


 


(c) 
investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the laws
of the United States of America or any State thereof that has a combined
capital and surplus and undivided profits of not less than $500,000,000;


 


(d) 
fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (a) above and entered into with a
financial institution satisfying the criteria described in clause (c) above;


 


(e) 
money market funds that (i) comply with the criteria set forth in Rule 2a-7
under the Investment Company Act of 1940, (ii) are rated AAA by S&P
and Aaa by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000; and


 


(f) 
in the case of any Foreign Subsidiary, other short-term investments that are
analogous to the foregoing, are of comparable credit quality and are
customarily used by companies in the jurisdiction of such Foreign Subsidiary
for cash management purposes.


 


“Person” shall mean
any natural person, corporation, trust, joint venture, association, company,
partnership, limited liability company, Governmental Authority or other entity.


 


“Plan” shall mean any
employee pension benefit plan (other than a Multiemployer Plan) that is subject
to Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code or Section 302 of ERISA sponsored, maintained or contributed
to by the Borrower or any member of the Controlled Group.


 


“Platform” shall have
the meaning assigned to such term in Section 9.17(b).


 


“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.


 


“Pro Rata Percentage”
of any Lender at any time shall mean the percentage of the Total Commitment
represented by such Lender’s Commitment at such 


 


25

















 


time.  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.


 


“Recipient”
shall mean, as applicable, (a) any Person to which any payment on account
of any obligation of a Loan Party under any Loan Document is made or owed,
including the Agent or any Lender or (b) the beneficial owner of any
Person described in clause (a).


 


“Reference Banks”
shall mean Citibank, N.A., JPMorgan Chase Bank, N.A. and Wells Fargo Bank, N.A.


 


“Register” shall have
the meaning assigned to such term in Section 9.04(c).


 


“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 (a) the
principal amount of such Replacement Indebtedness shall not exceed the
principal amount of such Original Indebtedness except by an amount no greater
than accrued and unpaid interest with respect to such Original Indebtedness and
reasonable fees, premium and expenses relating to such extension, refunding,
refinancing or replacing; (b) no Subsidiary shall be liable for any such
Replacement Indebtedness that shall not have been liable for such Original
Indebtedness; (c) 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; (d) such
Replacement Indebtedness shall not mature before the date that is at least six
months after the Maturity Date and shall not be subject to any requirement not
applicable 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 date that is at least six months after the
Maturity Date; (e) 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;
and (f) such Replacement Indebtedness shall not be secured by any Lien on
any asset other than the assets that secured such Original Indebtedness (or
would have been required to secure such Original 


 


26

















 


Indebtedness pursuant to the
terms thereof) or, in the event Liens securing the Original Indebtedness shall
have been contractually subordinated to any Lien securing the Obligations, by
any Lien that shall not have been contractually subordinated to at least the
same extent.


 


“Related Parties”
shall mean, with respect to any specified Person, such Person’s Affiliates and
the directors, officers, partners, trustees, employees, agents and advisors of
such Person and of such Person’s Affiliates.


 


“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,
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 or Section 302 of ERISA applicable to such Plan shall be a reportable
event regardless of the issuance of any waiver in accordance with Section 412(c) of
the Code or Section 302(c) of ERISA.


 


“Required Lenders”
shall mean, at any time, Lenders in the aggregate holding more than 50% of the
Total Commitment or, for purposes of acceleration pursuant to clause (ii) of
Article VII or if the Total Commitment has been terminated, Lenders in the
aggregate representing more than 50% of the sum of the Revolving Credit
Exposure and the principal amount of the outstanding Competitive Loans.


 


“Responsible Officer”
of any Person shall mean any executive officer or Financial Officer of such
Person and any other officer or similar official thereof responsible for the
administration of the obligations of such Person in respect of this Agreement
and the other Loan Documents.


 


“Restatement Effective
Date” shall have the meaning assigned to such term in the Amendment
Agreement.


 


“Restricted Payment”
shall mean (a) any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interest in the
Borrower or any Subsidiary or (b) any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account
of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interest in the Borrower or any Subsidiary.


 


“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.


 


“Sale and Leaseback
Transaction” shall have the meaning assigned to such term in Section 6.03.


 


“S&P” shall mean
Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc.


 


27

















 


“Secured Parties”
shall have the meaning assigned to such term in the Collateral Agreement.


 


“Security Documents”
shall mean the Collateral Agreement, the Foreign Pledge Agreements, the IP
Security Agreements, the Mortgages, the Control Agreements and each other
security agreement executed and delivered pursuant to Section 5.08, 5.09
or 5.10 to secure any of the Obligations.


 


“SPC” shall have the
meaning set forth in Section 9.04(f).


 


“Specified Hedging
Agreements” shall mean one or more Hedging Agreements entered into by the
Borrower or any Subsidiary to hedge or mitigate earnings volatility arising
from mark-to-market accounting of seed capital investments or to facilitate the
creation of investment track records for, or otherwise entered into in
connection with, seeding of new products.


 


“Standby Borrowing”
shall mean Standby Loans of a single Type made, converted or continued on a
single date and, in the case of Eurodollar Standby Loans, as to which a single
Interest Period is in effect.


 


“Standby Borrowing
Request” shall mean a written request made by the Borrower pursuant to Section 2.04,
which shall be in the form of Exhibit A-5.


 


“Standby Loans” shall
mean the revolving loans made by the Lenders to the 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 at any time, any corporation, partnership,
limited liability company, association or other business entity of which Equity
Interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, at such time owned, controlled or held by
such Person or by such Person and one or more subsidiaries of such Person.


 


“Subsidiary” shall
mean any direct or indirect subsidiary of the Borrower.


 


28

















 


“Subsidiary Loan Party”
shall mean each Subsidiary that is a party to the Collateral Agreement.


 


“Syndication Agent”
shall mean JPMorgan Chase Bank, N.A


 


“Taxes” shall mean any present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.


 


“Total Commitment”
shall mean at any time the aggregate amount of the Lenders’ Commitments at such
time.


 


“Transactions” shall
have the meaning assigned to such term in Section 3.02.


 


“Transferee” shall
mean any Eligible Assignee to whom a Lender shall have assigned all or any part
of its Commitment or Loans or sold all or any part of its rights under this
Agreement, in each case in accordance with Section 9.04.


 


“Type”, when used in
respect of any Loan or Borrowing, shall refer to the Rate by reference to which
interest on such Loan or on the Loans comprising such Borrowing is
determined.  For purposes hereof, “Rate”
shall mean the Adjusted LIBO Rate, the LIBO Rate, the Alternate Base Rate or
the Fixed Rate.


 


“Unfunded Liabilities”
shall mean, on any date of determination, (a) in the case of Multiemployer
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, the amount by which the present value of all benefit liabilities under
each Plan (based on assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) exceeds the fair market value of the assets
of such Plan.


 


“U.S. Person” shall
mean a “United States person” within the meaning of Section 7701(a)(30) of
the Code.


 


“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.


 


“Withholding Agent”
shall mean any Loan Party and the Agent.


 


SECTION 1.02.  Terms Generally.  The definitions of terms herein 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”.  The word “will” shall be
construed to have the same meaning and effect as the word “shall”.  The words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all real 


 


29





















 


and personal, tangible and intangible assets and properties, including
cash, securities, accounts and contract rights. 
The word “law” shall be construed as referring to all statutes, rules,
regulations, codes and other laws (including official rulings and
interpretations thereunder having the force of law), and all judgments, orders,
writs and decrees, of all Governmental Authorities.  Unless the context requires otherwise, (a) any
definition of or reference to any agreement, instrument or other document (including
this Agreement) shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any definition of or reference to any
statute, rule or regulation shall be construed as referring thereto as
from time to time amended, supplemented or otherwise modified (including by
succession of comparable successor laws), (c) any reference herein to any
Person shall be construed to include such Person’s successors and assigns
(subject to any restrictions on assignment set forth herein) and, in the case
of any Governmental Authority, any other Governmental Authority that shall have
succeeded to any or all functions thereof, (d) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof and (e) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement.  All
references herein to “the date hereof” or “the date of this Agreement” shall be
interpreted as references to the Restatement Effective Date.


 


SECTION 1.03.  Accounting Terms.  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 that (a) 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
Restatement Effective Date applied on a basis consistent with the application
used in preparing the Borrower’s audited consolidated financial statements
referred to in Section 3.05 and (b) for purposes of determining
compliance with any covenant set forth in Article VI or determining the
“Applicable Rate,” no effect shall be given to any election under Statement of
Financial Accounting Standards No. 159, The
Fair Value Option for Financial Assets and Financial Liabilities, to
value any Indebtedness of the Borrower or any Subsidiary at “fair value”, as
defined therein.  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.


 


30





















 


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 that will not result in (a) the
Revolving Credit Exposure of such Lender exceeding such Lender’s Commitment or (b) the
sum of the Revolving Credit Exposures of all the Lenders plus the
aggregate principal amount of all Competitive Loans outstanding at the time
exceeding the lesser of (i) the Total Commitment and (ii) the
Maximum Availability at the time.  Within
the foregoing limits, the Borrower may borrow, pay or prepay and reborrow
hereunder, 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.  Each Competitive Loan shall
be made in accordance with the procedures set forth in Section 2.03.  At the time of the commencement of each
Interest Period for any Eurodollar Standby Borrowing, such Borrowing shall be
in an aggregate principal amount that is an integral multiple of $1,000,000 and
not less than $5,000,000. At the time that each ABR Borrowing is made, such
Borrowing shall be in an aggregate principal amount that is an integral
multiple of $1,000,000 and not less than $1,000,000; provided that an
ABR Borrowing may be in an aggregate principal amount that is equal to the
entire unused balance of the Total Commitment. 
Each Competitive Borrowing shall be in an aggregate principal amount
that is an integral multiple of $1,000,000 and not less than $10,000,000.


 


(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.  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
that the Borrower shall not be entitled to request any Borrowing which, if
made, would result in an aggregate of more than 10 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) 
Each Lender shall make each Loan to be made by it hereunder on the proposed
date thereof (i) in the case of a Eurodollar Loan, 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, on such date and (ii) in
the case of an ABR Loan or 


 


31





















 


a Fixed Rate Loan, by wire
transfer of immediately available funds to the Agent in New York,
New York, not later than 3:00 p.m., New York City time, on such
date, and the Agent shall promptly credit the amounts so received to the
general deposit account of the Borrower with the Agent. 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 hereby.  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 fax to the Agent a duly completed and
executed Competitive Bid Request, to be received by the Agent (i) in the
case of a Eurodollar Competitive Borrowing, not later than 1:00 p.m., New
York City time, four Business Days before the date of the requested Competitive
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than
1:00 p.m., New York City time, one Business Day before the date of the
requested Competitive Borrowing; provided that no Competitive Bids shall
be requested if, after giving effect to the Competitive Loans requested
thereby, the sum of the Revolving Credit Exposures of all the Lenders
plus the aggregate principal amount of all Competitive Loans outstanding
at the time would exceed the lesser of (i) the Total Commitment and (ii) the
Maximum Availability at the time.  A
Competitive Bid Request that does not conform substantially to the format of Exhibit A-1
may be rejected by the Agent in its sole discretion, and the Agent shall
promptly notify the Borrower of any such rejection.  Each request for Competitive Bids shall refer
to this Agreement and specify (x) whether the Competitive Borrowing then
being requested is to be a Eurodollar Competitive Borrowing or a Fixed Rate
Borrowing, (y) the date of such Competitive 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 


 


32





















 


a Competitive Bid Request that is not rejected as aforesaid, the Agent
shall invite the Lenders, by means of the notice in the form of Exhibit A-2,
to bid, on the terms and conditions of this Agreement, to make Competitive
Loans requested pursuant to such Competitive Bid Request.


 


(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 shall be in
the form of Exhibit A-3 and must be received by the Agent (by hand
delivery or fax) (i) in the case of a Eurodollar Competitive Borrowing,
not later than 12:00 noon, New York City time, three Business Days before
the date of the requested Competitive Borrowing and (ii) in the case of a
Fixed Rate Borrowing, not later than 12:00 noon, New York City time, on
the day of the requested 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 Competitive Bids 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 requested Competitive Borrowing) 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 with respect thereto.  A Competitive Bid submitted by a Lender
pursuant to this paragraph (b) shall be irrevocable.


 


(c) 
With respect to each Competitive Bid Request, the Agent shall promptly notify
the Borrower by fax 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
Competitive 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.


 


(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.  The Borrower shall notify the Agent
by telephone, confirmed in writing by hand delivery or fax of a duly completed
and executed Competitive Bid Accept/Reject Letter, whether and to what extent
it has decided to accept or reject any of or all the Competitive Bids made
pursuant to any Competitive Bid Request (x) in the case of a Eurodollar Competitive
Borrowing, not later than 1:00 p.m., New York City time, three Business
Days before the date of the requested Competitive Borrowing, and (y) in
the case of a Fixed Rate Borrowing, not later than 1:00 p.m., New York
City time, on the day of the requested Competitive Borrowing; provided
that, with respect to any Competitive Bid Request, (i) the failure by the
Borrower to give such notice shall be deemed to be a rejection of all the
Competitive Bids made pursuant thereto, (ii) the Borrower shall not accept
a Competitive Bid made at a particular Competitive Bid Rate if it has decided
to reject a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate 


 


33





















 


principal amount of the
Competitive Loans offered pursuant to the Competitive Bids accepted by the
Borrower shall not exceed the principal amount specified in the Competitive Bid
Request, (iv) if the Borrower shall accept a Competitive Bid or
Competitive Bids made at a particular Competitive Bid Rate but the amount of
such bid or bids shall cause the total amount of Competitive 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, (v) the Borrower shall not accept a
Competitive Bid or Competitive Bids, or a portion of such bid or bids, if,
after giving effect thereto, the sum of the Revolving Credit Exposures of all
the Lenders and the aggregate principal amount of all Competitive Loans
outstanding at the time shall exceed the lesser of (x) the Total
Commitment and (y) the Maximum Availability at the time and (vi) except
pursuant to clauses (iv) and (v) above, no Competitive 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 that if a Competitive Loan must be in an amount less than
$10,000,000 because of the provisions of clause (iv) or (v) 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) above, 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), and each bidding Lender whose Competitive Bid has been
accepted will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan to the extent its Competitive
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 by 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 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 fax to the Agent a duly completed 


 


34





















 


and executed Standby Borrowing Request (a) in the case of a
Eurodollar Standby Borrowing, not later than 1:00 p.m., New York City
time, three Business Days before the date of the requested Standby Borrowing
and (b) in the case of an ABR Borrowing, not later than 1:00 p.m.,
New York City time, on the day of the requested Standby Borrowing.  Each such request shall be irrevocable and
shall 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
request, 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 request, then the
Borrower shall be deemed to have selected an Interest Period of one month’s
duration. The Agent shall promptly advise the Lenders of any request given
pursuant to this Section and of each Lender’s portion of the requested
Borrowing.


 


SECTION 2.05.  Standby 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 Standby Borrowing to a Standby Borrowing of a different Type or to
continue such Standby 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 Standby
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Standby Loans comprising such Standby Borrowing, and the
Standby Loans comprising each such portion shall be considered a separate
Standby Borrowing.  This Section shall
not apply to Competitive 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 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 fax 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 Standby 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 Standby Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Standby Borrowing);


 


35




















 


(ii) 
the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;


 


(iii) 
whether the resulting Standby Borrowing is to be an ABR Borrowing or a
Eurodollar Standby Borrowing; and


 


(iv) 
if the resulting Standby Borrowing is to be a Eurodollar Standby 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 Standby 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 Standby 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 Standby 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 Standby Borrowing and (ii) unless repaid, each
Eurodollar Standby Borrowing shall be converted to an ABR Borrowing at the end
of the Interest Period applicable thereto.


 


SECTION 2.06.  Fees. 
(a)  The Borrower
agrees to pay to the Agent for the account of each Lender a commitment fee (the
“Commitment Fee”), which shall accrue at the Applicable Rate on the
daily unused amount of the Commitment of such Lender during the period from and
including the Restatement Effective Date to but excluding the date on which
such Commitment terminates.  Accrued
Commitment Fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the Restatement Effective
Date.  All Commitment 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).  For purposes of computing Commitment
Fees, (i) the Commitment of a Lender shall be deemed to be used to the
extent of such Lender’s Revolving Credit Exposure and (ii) the outstanding
Competitive Loans of any Lender shall be disregarded.


 


(b) 
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.


 


36

















 


(c) 
All Fees shall be paid on the dates due, in immediately available funds, to the
Agent for distribution, if and as appropriate, among the Lenders.  Once paid, none of the Fees shall be
refundable under any circumstances absent manifest error.


 


SECTION 2.07.  Repayment of Loans; Evidence of Debt.  (a)  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.


 


(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 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 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 affect the obligations of the Borrower to
repay the Loans in accordance with their terms or 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 2.08.  Interest on Loans.  (a)  Subject to Section 2.09, the
Loans comprising each Eurodollar Borrowing shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 360 days) at a rate
per annum equal to (i) in the case of each Eurodollar Standby Loan, the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable 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.  Accrued
interest on each Eurodollar Loan shall be payable in arrears on each Interest
Payment Date for such Loan.  Each Reference
Bank 


 


37

















 


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 Section 2.09, the Loans comprising each ABR Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be) at a rate per annum
equal to the Alternate Base Rate plus the Applicable Rate.  Accrued interest on each ABR Loan shall be
payable in arrears on each Interest Payment Date for such Loan.  The Alternate Base Rate shall be determined
by the Agent, and such determination shall be conclusive absent manifest error.


 


(c) 
Subject to Section 2.09, each Fixed Rate Loan shall bear interest at a
rate per annum (computed on the basis of the actual number of days elapsed over
a year of 360 days) equal to the fixed rate of interest offered by the
Lender making such Loan and accepted by the Borrower pursuant to Section 2.03.  Accrued interest on each Fixed Rate Loan
shall be payable in arrears on each Interest Payment Date.


 


SECTION 2.09.  Default Interest.  Notwithstanding anything to the contrary
herein, (a) upon the occurrence and during the continuance of an Event of
Default and, except where an Event of Default shall have occurred and be
continuing under clause (b), (c), (g) or (h) of Article VII,
after receipt of a request therefor from the Agent or the Required Lenders, the
Borrower shall pay interest on the unpaid principal amount of each Standby
Loan, payable in arrears on the dates referred to in Section 2.08, 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 Loan pursuant to Section 2.08(a) or
2.08(b), as applicable, and (b) to the fullest extent permitted by law,
the Borrower shall pay interest on the amount of any interest, fee or other
amount payable hereunder (other than the principal of any Standby Loan) 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 Loans pursuant to Section 2.08(b).


 


SECTION 2.10.  Alternate Rate of Interest.  In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any Interest Period for
a Eurodollar Borrowing the Agent shall have determined that dollar deposits in
the principal amounts of the Eurodollar Loans comprising such Borrowing are not
generally available in the London interbank market, or that the rates at which
such dollar deposits are being offered will not adequately and fairly reflect
the cost to any Lender of making or maintaining its Eurodollar Loan during such
Interest Period, or that reasonable means do not exist for ascertaining the
Adjusted LIBO Rate or the LIBO Rate, the Agent shall, as soon as practicable
thereafter, give written or fax notice of such determination to 


 


38

















 


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, (a) 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 (b) any request by the Borrower for a
Eurodollar Standby Borrowing pursuant to Section 2.04 shall be deemed to
be a request for an ABR Borrowing. 
In the event of any such determination, the Lenders shall negotiate with
the 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 2.08(b) pending the execution by the
Borrower and each Lender of a written agreement providing for a different
interest rate.  Each determination by the
Agent hereunder shall be conclusive absent manifest error.


 


SECTION 2.11.  Termination and Reduction of Commitments.  (a)  Unless previously terminated, the
Commitments shall terminate on the Maturity Date.


 


(b) 
Upon at least three Business Days’ prior irrevocable written or fax 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 2.15,
the Total Commitment; provided 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 $5,000,000 and (ii) no such termination or
reduction shall be made if, after giving effect to any concurrent prepayment of
the Loans in accordance with Section 2.12, the sum of the Revolving Credit
Exposures of all the Lenders plus the aggregate principal amount of all
Competitive Loans outstanding at the time would exceed the lesser of (x) the
Total Commitment and (y) the Maximum Availability at the time.


 


(c) 
In the event and on any occasion that any Net Proceeds are received by or on
behalf of the Borrower or any Subsidiary in respect of any sale, transfer or
other disposition of Equity Interests in INTECH or Perkins pursuant to Section 6.04(c)(iv),
the Total Commitment shall, on the second Business Day immediately following
the day such Net Proceeds are received, be automatically permanently reduced by
an amount equal to the product of (i) the Applicable Percentage and (ii) the
Total Commitment as in effect immediately prior to such reduction (and the
Borrower shall make the prepayment, if any, required to be made as a result of
such reduction pursuant to Section 2.12(c))


 


(d) 
Each reduction in the Total Commitment under this Section 2.11 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 of the Total Commitment under this Section 2.11, the Commitment
Fees on the amount of the Commitments so terminated or reduced accrued through
the date of such termination or reduction.


 


SECTION 2.12.  Prepayment.  (a)  The Borrower shall have the right,
at any time and from time to time, to prepay any Standby Borrowing, in whole or
in part, 


 


39

















 


upon giving written or fax notice (or telephone notice promptly
confirmed by written or fax notice) to the Agent prior to (i) 1:00 p.m.,
New York City time, two Business Days prior to the date of prepayment, in the
case of Eurodollar Standby Loans, and (ii) before 1:00 p.m., New York
City time, on the Business Day of the date of prepayment, in the case of ABR
Loans; provided 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) 
In the event and on each occasion that the sum of the Revolving Credit
Exposures of all the Lenders plus the aggregate principal amount of all
Competitive Loans outstanding exceeds, on any day, the Maximum Availability on
such day, the Borrower shall, not later than the immediately following Business
Day, (i) prepay Standby Borrowings in an amount equal to the lesser of the
aggregate principal amount of the Standby Borrowings then outstanding and the
amount of such excess and (ii) to the extent the amount of such excess
shall exceed the aggregate principal amount of the Standby Borrowings then
outstanding, prepay Competitive Borrowings in an amount sufficient to eliminate
such remaining excess.


 


(c) 
In the event and on each occasion that the Total Commitment is reduced pursuant
to Section 2.11, and, following such reduction, the sum of the Revolving
Credit Exposures of all the Lenders plus the aggregate principal amount of all
Competitive Loans outstanding exceeds the Total Commitment, the Borrower
shall, on such day, (i)  prepay Standby Borrowings in an amount equal to
the lesser of the aggregate principal amount of the Standby Borrowings then
outstanding and the amount of such excess and (ii) to the extent the
amount of such excess shall exceed the aggregate principal amount of the
Standby Borrowings then outstanding, prepay Competitive Borrowings in an amount
sufficient to eliminate such remaining excess. 
In the event of a termination of all of the Commitments, the Borrower
shall repay or prepay all the outstanding Loans on the date of such
termination.


 


(d) 
In the event and on any occasion that any Net Proceeds are received by or on
behalf of the Borrower or any Subsidiary in respect of (i) any issuance of
preferred Equity Interests in or other preferred securities of the Borrower, (ii) any
sale, transfer or other disposition of Equity Interests in INTECH or Perkins
pursuant to Section 6.04(c)(iv) or (iii) any sale, transfer or
other disposition of securities of Stanfield Victoria Funding LLC pursuant to Section 6.04(c)(v),
the Borrower shall (A) within two Business Days after such Net Proceeds
are received, prepay Standby Borrowings in an aggregate amount equal to the
lesser of the aggregate principal amount of the Standby Borrowings then
outstanding and the amount of such Net Proceeds and (B) solely in the case
of any event described in clause (i) or (ii) above, to the extent the
amount of such Net Proceeds shall exceed the aggregate principal amount of the
Standby Borrowings then outstanding, within 90 Business Days after such Net
Proceeds are received, prepay (or cause any Subsidiary to prepay) other
Indebtedness of the Borrower or any Subsidiary in an aggregate amount equal to
the 


 


40





















 


lesser of the aggregate
principal amount of all such other Indebtedness then outstanding and 75% of
such excess.


 


(e) 
Each notice of prepayment shall specify the prepayment date and the principal
amount of each Standby Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Standby Borrowing (or
portion thereof) by the amount stated therein on the date stated therein.  All prepayments under this Section shall
be subject to Section 2.15, but shall otherwise be without premium or
penalty.  All prepayments under this Section shall
be accompanied by accrued interest on the principal amount being prepaid to the
date of payment.


 


SECTION 2.13.  Reserve Requirements; Change in Circumstances.  (a)  Notwithstanding any other provision
herein, if after the Closing Date any change in applicable law or regulation or
in the interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall change the basis of taxation of payments to any
Lender of the principal of or interest on any Eurodollar Loan or Fixed Rate
Loan made by such Lender or any Fees or other amounts payable hereunder (other
than changes in respect of Taxes imposed on the overall net income of such
Lender by the jurisdiction in which such Lender has its principal or applicable
lending office or by any political subdivision or taxing authority therein), or
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
extended by such Lender (except any such reserve requirement which is reflected
in the Adjusted LIBO Rate), or shall impose on such Lender or the London
interbank market any other condition affecting this Agreement or any Eurodollar
Loan or Fixed Rate Loan made by such Lender, and the result of any of the
foregoing shall be to increase the direct cost to such Lender of making or
maintaining any Eurodollar Loan or Fixed Rate Loan or to reduce the amount of
any sum received or receivable by such Lender hereunder (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 Closing Date 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 


 


41

















 


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
invalidity or inapplicability of the law, rule, regulation, guideline or other
change or condition which shall have occurred or been imposed.


 


SECTION 2.14.  Change in Legality.  (a)  Notwithstanding any other provision
herein, if any change in any law or regulation or in the interpretation thereof
by any Governmental Authority charged with the administration or interpretation
thereof shall make it unlawful for any Lender to make or maintain any
Eurodollar Loan or to give effect to its obligations as contemplated hereby
with respect to any Eurodollar Loan, then, by written notice to the 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 clause (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 


 


42

















 


provided in Section 2.08(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, 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 2.15.  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 2.05, (c) any
payment, prepayment or conversion of a Eurodollar Loan or Fixed Rate Loan
required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period applicable
thereto, (d) any default in payment or prepayment by 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.  This Section 2.15 shall not apply with
respect to Taxes, other than Taxes that represent losses or damages arising
from any non-Tax claim.


 


SECTION 2.16.  Pro Rata Treatment.  Except as required under Section 2.14,
each Standby Borrowing, each payment or prepayment of principal of any Standby
Borrowing, each payment of interest on the Standby Loans, each payment of the
Commitment Fees, 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 shall be allocated pro rata among the Lenders participating in such
Borrowing in accordance with the respective principal amounts of their
outstanding Competitive 


 


43

















 


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 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) pro rata in
accordance with such respective Commitments, except as set forth in Section 2.06(a).  Each Lender agrees that in computing such
Lender’s portion of any Borrowing to be made hereunder, the Agent may, in its
discretion, round each Lender’s percentage of such Borrowing to the next higher
or lower whole dollar amount.


 


SECTION 2.17.  Sharing of Setoffs.  Each Lender agrees that if it shall, through
the exercise of a right of banker’s lien, setoff or counterclaim against 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, 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 as a result of which the unpaid principal portion of the
Standby Loans of such Lender shall be proportionately less than the unpaid
principal portion of the Standby 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 of such other Lender, so that the aggregate unpaid
principal amount of the Standby Loans and participations in the Standby Loans
held by each Lender shall be in the same proportion to the aggregate unpaid
principal amount of all Standby Loans then outstanding as the principal amount
of its Standby Loans prior to such exercise of banker’s lien, setoff or
counterclaim or other event was to the principal amount of all Standby 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 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 directly to the
Borrower in the amount of such participation.


 


SECTION 2.18.  Payments.  (a)  The Borrower shall make each
payment (including principal of or interest on any Borrowing or any Fees or
other amounts) hereunder and under any other Loan Document not later than 1:00 p.m.,
New York City time, on the date when due in dollars to the Agent at its offices
at Citi Global Loans, 1615 Brett Road, OPS 3, New Castle, DE 19720, ABA 021 00
00 89, Account No. 36852248, Attention: Mark Rosenthal, in immediately
available funds.


 


44
















 


(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.


 


(c) 
In the event that any financial statements delivered under Section 5.04(a) or
5.04(b), or any certificate delivered under Section 5.04(c), shall prove
to have been materially inaccurate (regardless of whether any Commitments are
in effect or any amounts are outstanding hereunder when such inaccuracy is
discovered), and such inaccuracy shall have resulted in the payment of any
interest or fees at rates lower than those that were in fact applicable for any
period (based on the actual Leverage Ratio), the Borrower shall pay to the
Agent, for distribution to the Lenders (or former Lenders) as their interests
may appear, the accrued interest or fees that should have been paid but were
not paid as a result of such misstatement.


 


SECTION 2.19.  Taxes. 
(a)  Each payment by any Loan Party under any Loan Document shall
be made without withholding for any Taxes, unless such withholding is required
by any law, as modified by the practice then in effect of any Governmental
Authority.  If any Withholding Agent
determines, in its sole discretion exercised in good faith, that it is so
required to withhold Taxes, then such Withholding Agent may so withhold and
shall timely pay the full amount of withheld Taxes to the relevant Governmental
Authority in accordance with applicable law. 
If such Taxes are Indemnified Taxes, then the amount payable by the
applicable Loan Party shall be increased as necessary so that, net of such
withholding (including such withholding applicable to additional amounts
payable under this Section 2.19), the applicable Recipient receives the
amount it would have received had no such withholding been made.


 


(b) 
The Loan Parties shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c) 
Within 30 days after any payment of Indemnified Taxes by a Loan Party to a
Governmental Authority, such Loan Party shall deliver to the Agent at its
address referred to in Section 9.01 the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Agent.


 


(d) 
The Loan Parties shall severally indemnify each Recipient for the full amount
of any Indemnified Taxes payable by such Recipient with respect to any Loan
Document or any payment by such Loan Party under any Loan Document (including
amounts payable under this Section 2.19) and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly imposed by the relevant Governmental Authority.  The indemnity under this paragraph (d) shall
be paid within 30 days after the date the Recipient delivers to the applicable
Loan Party a certificate stating the amount of Indemnified Taxes so payable 


 


45

















 


by such Recipient.  Such certificate shall be conclusive of the
amount so payable absent manifest error. 
Such Recipient shall deliver a copy of such certificate to the Agent.


 


(e) 
The Lenders shall severally indemnify the Agent for the full amount of any
Excluded Taxes payable by the Agent with respect to any Loan Document or any
payment by any Loan Party under any Loan Document and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Excluded Taxes
were correctly imposed by the relevant Governmental Authority, except to the
extent that any such amount or payment is determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or wilful misconduct of the Agent.  The indemnity under this paragraph (e) shall
be paid within 30 days after the Agent delivers to the applicable Lender a
certificate stating the amount of Excluded Taxes so payable by the Agent.  Such certificate shall be conclusive of the
amount so payable absent manifest error.


 


(f) 
(i) Any Lender that is entitled to an exemption from, or reduction of, any
applicable withholding Tax with respect to payments under any Loan Document
shall deliver to the Borrower and the Agent, at the time or times prescribed by
law or reasonably requested by the Borrower or the Agent, such properly
completed and executed documentation prescribed by law or reasonably requested
by the Borrower or the Agent as will permit such payments to be made without,
or at a reduced rate of, withholding.  In
addition, any Lender shall deliver such other documentation prescribed by law
or reasonably requested by the Borrower or the Agent as will enable the
Borrower or the Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in
the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth below in this paragraph
(f)) shall not be required if in the Lender’s judgment such completion,
execution or submission would subject such Lender to any material unreimbursed
cost or expense or would materially prejudice the legal or commercial position
of such Lender. Upon the reasonable request of the Borrower or the Agent, any
Lender shall update any form or certification previously delivered pursuant to
this Section 2.19.  If any such form
or certification expires or becomes obsolete or inaccurate in any respect with
respect to a Lender, such Lender shall promptly (and in any event within 10
days after such expiration, obsolescence or inaccuracy) notify the Borrower and
the Agent in writing of such expiration, obsolescence or inaccuracy.


 


(ii) Without limiting
the generality of the foregoing, if the Borrower is a U.S. Person, any Lender
with respect to the Borrower shall, if it is legally eligible to do so, deliver
to the Borrower and the Agent (in such number of copies reasonably requested by
the Borrower and the Agent) on or prior to the date on which such Lender
becomes a party hereto (or, in the case of a participation holder, on or before
the date such participation is effective hereunder) and on or before the date,
if any, such Lender changes its applicable lending office by designating a new
lending office, duly completed and executed copies of whichever of the
following is applicable:


 


46

















 


(A)  in the case of a
Lender that is a U.S. Person, IRS Form W-9;


 


(B) 
in the case of a Lender (other than a U.S. Person) claiming the benefits of an
income tax treaty to which the United States is a party (1) with respect
to payments of interest under any Loan Document, IRS Form W-8BEN
establishing an exemption from, or reduction of, U.S. Federal withholding Tax
pursuant to the “interest” article of such tax treaty and (2) with respect
to all other payments under any Loan Document, IRS Form W-8BEN
establishing an exemption from U.S. Federal withholding Tax pursuant to the
“business profits” or “other income” article of such tax treaty;


 


(C) 
in the case of a Lender (other than a U.S. Person) for whom payments under any
Loan Document constitute income that is effectively connected with such
Lender’s conduct of a trade or business in the United States, IRS Form W-8ECI;


 


(D) 
in the case of a Lender (other than a U.S. Person) claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code
both (1) IRS Form W-8BEN and (2) a certificate to the effect
that such Lender is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of
the Code, (b) a “10 percent shareholder” of the Borrower within the
meaning of Section 881(c)(3)(B) of the Code, (c) a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Code
and (d) conducting a trade or business in the United States with which the
relevant interest payments are effectively connected;


 


(E) in
the case of a Lender (other than a U.S. Person) that either is not the
beneficial owner of payments made under any Loan Document or is a partnership (1) an
IRS Form W-8IMY on behalf of itself and (2) the relevant forms
prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph
(f)(ii) that would be required of each such beneficial owner or partner of
such partnership if such beneficial owner or partner were a Lender; or


 


(F) 
any other form prescribed by law as a basis for claiming exemption from, or a
reduction of, U.S. Federal withholding Tax together with such supplementary
documentation necessary to enable the Borrower or the Agent to determine the
amount of Tax (if any) required by law to be withheld.


 


(g) 
If any Recipient determines, in its sole discretion exercised in good faith,
that it has received a refund of any Taxes as to which it has been indemnified
pursuant to this Section 2.19 (including additional amounts paid by any
Loan Party pursuant to this Section 2.19), it shall pay to the
indemnifying party an amount equal to such refund (but only to the extent of
indemnity payments made under this Section 2.19 with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses (including any
Taxes) of such Recipient and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of
such Recipient, shall repay to such Recipient the amount paid to such Recipient
pursuant to the previous sentence (plus 


 


47

















 


any penalties, interest or
other charges imposed by the relevant Governmental Authority) in the event such
Recipient is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in
this paragraph (g), in no event will any Recipient be required to pay any amount
to any Loan Party pursuant to this paragraph (g) if such payment would
place such Recipient in a less favorable position (on a net after-Tax basis)
than such Recipient would have been in if the indemnification payments or
additional amounts giving rise to such refund had never been paid.  This paragraph (g) shall not be
construed to require any Recipient to make available its Tax returns (or any
other information relating to its Taxes that it deems confidential) to any Loan
Party or any other Person.


 


(h) 
Without prejudice to the survival of any other agreement contained herein, the
agreements and obligations contained in this Section 2.19 shall survive
termination of the Loan Documents and payment of any obligations thereunder.


 


SECTION 2.20.  Termination or Assignment of Commitments
under Certain Circumstances.  In the
event that any Lender shall fail to pay amounts due to the Agent pursuant to Section 2.02(c) or
any Lender shall have delivered a notice or certificate pursuant to Section 2.13
or 2.14, or the Borrower shall be required to make additional payments to any
Lender under Section 2.19, and provided that no Default or Event of
Default shall have occurred and be continuing, the 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 (other than any outstanding
Competitive Loans held by it) to an Eligible Assignee 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 such 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
(other than any outstanding Competitive Loans held by it), (iii) if such
assignee 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 $3,500 to the Agent and (iv) in the case of any
assignment resulting from a claim for compensation under Section 2.13 or
payments required to be made pursuant to Section 2.19, such assignment
will result in a reduction of such compensation or payments thereafter.  A Lender shall not be required to make any
such assignment or delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.


 


SECTION 2.21.  Lending Offices and Lender Certificates;
Survival of Indemnity.  To the extent
reasonably possible, each Lender shall designate an alternate lending office
with respect to its Eurodollar Loans and Fixed Rate Loans to reduce any
liability of the Borrower to such Lender under Section 2.13 or to avoid
the unavailability of Eurodollar Loans under Section 2.10 or 2.14, so long
as such designation is not 


 


48

















 


disadvantageous to such Lender. 
A good faith certificate of a Lender setting forth a reasonable basis of
computation and allocation of the amount due under Section 2.13 or 2.15
shall be final, conclusive and binding on the 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 2.13, 2.15, 2.18(c), 2.19 and 9.05 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 the Subsidiaries to each of the Lenders that:


 


SECTION 3.01.  Corporate Existence and Standing.  The Borrower and each Subsidiary is duly
organized, validly existing and, where such concept exists in the relevant
jurisdiction of organization, in good standing under the laws of its
jurisdiction of organization 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.  Each Loan Party has the corporate or other
organizational, as applicable, 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
all necessary corporate or other organizational action, and if required,
stockholder or other equity holder action, as applicable. This Agreement has
been duly executed and delivered by the Borrower and constitutes, and each
other Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of the Borrower or such other Loan Party, enforceable against the
Borrower or such other Loan Party 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.


 


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 Subsidiary or the Borrower’s or any Subsidiary’s
articles or certificate of incorporation, bylaws or other organizational
documents 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, except for Liens created under the Loan
Documents.  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 


 


49

















 


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, except acts necessary to perfect Liens created
under the Loan Documents.


 


SECTION 3.04.  Compliance with Laws; Environmental and
Safety Matters.  (a)  The
Borrower and each Subsidiary has complied 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.


 


(b) 
The Borrower and each Subsidiary has complied in all material respects with all
applicable 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 consolidated balance sheet and statements of income, changes in
stockholders’ equity and cash flows as of the end of and for the fiscal year
ended December 31, 2008, audited by and accompanied by the opinion of
Deloitte & Touche LLP, an independent registered public accounting
firm.  Such financial statements were
prepared in accordance with GAAP and present fairly the financial condition and
results of operations of the Borrower and the Consolidated Subsidiaries as of
such date and for such period.  Such
balance sheet and the notes thereto disclose all material liabilities, direct
or contingent, of the Borrower and the Consolidated Subsidiaries as of the date
thereof.


 


SECTION 3.06.  No Material Adverse Change.  Except for any Disclosed Matter, no material
adverse change in the business, properties, financial condition, prospects or
results of operations of the Borrower and the Consolidated Subsidiaries has
occurred since December 31, 2008. 
It is understood that downgrades or negative pronouncements by rating
agencies and volatility in the capital markets generally shall 


 


50

















 


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 significant joint ventures and all the Subsidiaries, in each case on
and as of the Restatement Effective Date, setting forth their respective
jurisdictions of organization and the percentage of their respective ownership
interests held by the Borrower or other Subsidiaries, and identifies each
Subsidiary that is a Designated Subsidiary on and as of the Restatement
Effective Date.


 


SECTION 3.08.  Litigation.  Except for any Disclosed Matter, 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 Subsidiary that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.


 


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 any agreement to which it is
a party, which default could reasonably be expected to have a Material Adverse
Effect.


 


SECTION 3.10.  Regulation U.  Margin Stock constitutes, and at all times
will constitute, less than 25% of the assets of the Borrower and the
Subsidiaries that are subject to any limitation on sale or pledge hereunder.


 


SECTION 3.11.  Investment Company Act.  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.


 


SECTION 3.12.  Use of Proceeds.  The Borrower will use the proceeds of the
Loans only for working capital and other general corporate purposes.


 


SECTION 3.13.  Taxes. 
The Borrower and each Subsidiary (other than the Excluded Subsidiary)
have filed all United States Federal Tax returns, in the case of the Borrower
and each Domestic Subsidiary, 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 such Subsidiary, including all
Federal and state withholding Taxes and all Taxes required to be paid pursuant
to applicable law, except such Taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided.   The charges, accruals and reserves on the
books of the Borrower and the Consolidated Subsidiaries in respect of any Taxes
or other governmental charges are adequate.


 


SECTION 3.14.  Accuracy of Information.  The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which the Borrower
or any Subsidiary is subject, and all other matters known to the Borrower,
that, individually or in the aggregate, could reasonably be expected to result
in a Material 


 


51

















 


Adverse Effect.  Neither the
Confidential Information Memorandum nor any of the other reports, financial
statements, certificates or other written or formally presented information
furnished by or on behalf of the Borrower or any Loan Party to the Agent or any
Lender in connection with the negotiation of this Agreement or any other Loan
Document, included herein or therein or furnished hereunder or thereunder (in
each case taken as a whole and as modified or supplemented by other information
so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that,
as to financial projections, if any, that have been prepared by the Borrower
and made available to the Agent, any Lender or any potential Lender, the
Borrower only represents and warrants that such financial projections 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 and the variations therefrom may be
material).


 


SECTION 3.15.  No Undisclosed Dividend Restrictions.  Except for restrictions hereunder, and except
for restrictions on the payment of dividends under applicable law, none of the
Subsidiaries (other than the Excluded Subsidiary) 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.


 


SECTION 3.16.  Properties.  (a)  The Borrower and each Subsidiary
has good title to, or valid leasehold interests in, all its property (other
than Intellectual Property) material to its business (including its Mortgaged
Properties), except where the failure to have such title or leasehold interest
could not, individually or in the aggregate, reasonably be expected to have
Material Adverse Effect.


 


(b) 
The Borrower and each Subsidiary (other than the Excluded Subsidiary) owns, or
is licensed to use, all trademarks, tradenames, copyrights, patents and other
Intellectual Property material to the operation of its business, and, to the
knowledge of the Borrower, the use thereof by the Borrower and the Subsidiaries
does not infringe upon the Intellectual Property rights of any other Person,
except for any such infringements that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.


 


(c) 
As of the Restatement Effective Date, neither the Borrower nor any Designated
Subsidiary owns any parcel of real property in fee.


 


SECTION 3.17.  Collateral Matters.  (a)  The Collateral Agreement, upon
execution and delivery thereof by the parties thereto, will create in favor of
the Agent, for the benefit of the Secured Parties, a valid and enforceable
security interest in the Collateral (as defined therein) and (i) when the
Collateral constituting certificated securities (as defined in the Uniform
Commercial Code) is delivered to the Agent, together with instruments of
transfer duly endorsed in blank, the security interest created 


 


52

















 


under the Collateral Agreement will constitute a fully perfected
security interest in all right, title and interest of the pledgors thereunder
in such Collateral, prior and superior in right to any other Person, and (ii) when
financing statements in appropriate form are filed in the applicable filing
offices, the security interest created under the Collateral Agreement will
constitute a fully perfected security interest in all right, title and interest
of the Loan Parties in the remaining Collateral to the extent perfection can be
obtained by filing Uniform Commercial Code financing statements, prior and
superior to the rights of any other Person, except for rights secured by Liens
permitted by Section 6.02.


 


(b) 
Each Mortgage, upon execution and delivery thereof by the parties thereto, will
create in favor of the Agent, for the benefit of the Secured Parties, a legal,
valid and enforceable security interest in all the applicable mortgagor’s
right, title and interest in and to the Mortgaged Properties subject thereto
and the proceeds thereof, and when the Mortgages have been filed in the
jurisdictions specified therein, the Mortgages will constitute a fully perfected
security interest in all right, title and interest of the mortgagors in the
Mortgaged Properties and the proceeds thereof, prior and superior in right to
any other Person, but subject to Liens permitted by Section 6.02.


 


(c) 
Upon the recordation of the IP Security Agreements with the United States
Patent and Trademark Office or the United States Copyright Office, as
applicable, and the filing of the financing statements referred to in paragraph
(a) of this Section, the security interest created under the Collateral
Agreement will constitute a fully perfected security interest in all right,
title and interest of the Loan Parties in the Intellectual Property that is
included in the Collateral and in which a security interest may be perfected by
filing in the United States of America, in each case prior and superior in
right to any other Person, but subject to Liens permitted by Section 6.02
(it being understood that subsequent recordings in the United States Patent and
Trademark Office or the United States Copyright Office may be necessary to
perfect a security interest in such Intellectual Property acquired by the Loan
Parties after the Restatement Effective Date).


 


ARTICLE IV


 


CONDITIONS


 


SECTION 4.01.  Restatement Effective Date.  The effectiveness of the amendment and
restatement of the Existing Credit Agreement in the form of this Agreement is
subject to the satisfaction of the conditions precedent set forth in the
Amendment Agreement (or waiver thereof in accordance with the terms of the
Amendment Agreement).


 


SECTION 4.02.  All Borrowings.  The obligation of each Lender to make a Loan
on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:


 


(a) 
The Agent shall have received a notice of such Borrowing as required by Section 2.03
or 2.04, as applicable.


 


53




















 


(b) 
The representations and warranties set forth in Article III hereof and in
each Loan Document shall be true and correct in all material respects on and as
of the date of, and after giving effect to, such Borrowing with the same effect
as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.


 


(c) 
At the time of, and immediately after giving effect to such Borrowing, (i) no
Default or Event of Default shall have occurred and be continuing and (ii) the
Borrower shall be in compliance with Section 6.07(c) for a period of
five consecutive Business Days ending immediately prior to the date of such
Borrowing.


 


(d) 
At the time of, and immediately after giving effect to such Borrowing, the
sum of the Revolving Credit Exposures of all the Lenders plus the aggregate
amount of all Competitive Loans outstanding at such time shall not exceed the
lesser of (x) the Total Commitment and (y) the Maximum Availability
at such time.


 


(e) 
The Agent shall have received a certificate of a Financial Officer of the
Borrower, dated the date of such Borrowing, setting forth the Maximum
Availability as of the date of such Borrowing.


 


Each Borrowing shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Borrowing as to the matters
specified in paragraphs (b), (c) and (d) of this Section 4.02.  It is understood that this Section 4.02
shall not apply to a conversion or continuation of any Standby Borrowing
pursuant to Section 2.05.


 


ARTICLE V


 


AFFIRMATIVE COVENANTS


 


The Borrower covenants and
agrees with each Lender 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 (other than the Excluded 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 organized, validly existing and, where such concept exists in the
relevant jurisdiction of organization, in good standing in its jurisdiction of
organization and maintain all requisite authority to conduct its business in
each 


 


54

















 


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, at least (i) 50.1%
of the outstanding Equity Interests of each of INTECH and Perkins and (ii) 95%
of the outstanding Equity Interests of Janus Capital Management LLC, in each
case free and clear of any Liens on such Equity Interests, other than Liens
created under the Loan Documents and statutory Liens applicable to Equity
Interests.


 


(d) 
The Borrower will, and will cause each Subsidiary (other than the Excluded
Subsidiary) to, do all things necessary to maintain, preserve, protect and keep
their properties material to the conduct 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 in all material respects 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 (other than the Excluded Subsidiary) to, maintain, with Persons
that, to its knowledge, are financially sound and reputable insurance
companies, insurance on all its 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 furnish
to any Lender upon reasonable request full information as to the insurance
carried.  Each such policy of general
liability or casualty insurance maintained by or on behalf of Loan Parties
shall (a) in the case of each general liability insurance policy, name the
Agent, on behalf of the Lenders, as an additional insured thereunder, (b) in
the case of each casualty insurance policy, contain a loss payable clause or
endorsement that names the Agent, on behalf of the Secured Parties, as the loss
payee thereunder and (c) provide for at least 30 days’ (or such shorter
number of days as may be agreed to by the Agent) prior written notice to the
Agent of any cancellation of such policy.


 


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 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.


 


55

















 


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 or IFRS, as applicable, and will furnish to the Agent and
each Lender:


 


(a) 
within 90 days after the end of each of its fiscal years, its audited
consolidated balance sheet and related consolidated statements of income,
changes in stockholders’ equity and cash flows as of the end of and for such
fiscal year, setting forth in each case in comparative form the figures for the
prior fiscal year, all audited by and accompanied by 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 an
independent registered public accounting firm of nationally recognized standing
to the effect that such consolidated financial statements present fairly, in
all material respects, the financial position, results of operations and cash
flows of the Borrower and the Consolidated Subsidiaries on a consolidated basis
as of the end of and for such year in accordance with GAAP;


 


(b) 
within 45 days after the end of each of the first three quarters of each of its
fiscal years, its consolidated balance sheet and related consolidated
statements of income, changes in stockholders’ equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the prior fiscal year, all certified by a Financial Officer of the
Borrower as presenting fairly, in all material respects, the financial
position, results of operations and cash flows of the Borrower and the
Consolidated Subsidiaries on a consolidated basis as of the end of and for such
fiscal quarter and such portion of the fiscal year in accordance with GAAP,
subject to normal year-end audit adjustments and the absence of certain
footnotes;


 


(c) 
together with each delivery of financial statements under clause (a) or
(b) of this Section 5.04, a compliance certificate substantially in
the form of Exhibit C signed by a Financial Officer of the Borrower, (i) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Section 6.07, (iii) stating whether any change in GAAP or
in the application thereof has occurred since the date of the consolidated
balance sheet of the Borrower most recently theretofore delivered under
clause (a) or (b) of this Section 5.04 (or, prior to the
first such delivery, referred to in Section 3.05) and, if any such change
has occurred, specifying the effect of such change on the financial statements
(including those for the prior periods) accompanying such certificate, and (iv) certifying
that all notices required to be provided to the Agent under Sections 5.08
and 5.09 have been provided;


 


56

















 


(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 or in endangered or critical status within the meaning
of Section 305 of ERISA or Section 432 of the Code, a statement,
signed by a 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;


 


(g) 
within 10 days after the end of each calendar month, a certificate signed by a
Financial Officer of the Borrower certifying as to the dollar amount of
Long-Term Assets Under Management as of the close of business on each Business
Day during such month;


 


(h) 
in the event the dollar amount of Long-Term Assets Under Management as of the
close of business on any Business Day changes in a manner that, disregarding
the last sentence of the definition of the term “Maximum Availability”, would
result in a change in the Maximum Availability, no later than 12:00 noon, New
York City time, on the first Business Day following the date of such change, a
certificate of a Financial Officer of the Borrower notifying the Agent of such
change and specifying Long-Term Assets Under Management as of the close of
business on such immediately preceding Business Day;


 


(i) 
upon a reasonable request of the Agent therefor (and, in any event, no later
than 12:00 noon, New York City time, on the first Business Day following the
day of such request), a certificate signed by a Financial Officer of the
Borrower certifying as to the dollar amount of Long-Term Assets Under
Management as of the close of business on the Business Day immediately
preceding the date of such request;


 


(j) 
within 60 days after the end of each fiscal quarter of the Borrower, a
certificate of a Responsible Officer of the Borrower either (i) setting
forth (A) all Equity Interests or Indebtedness owned by any Loan Party, (B) all
Intellectual Property owned by any Loan Party, (C) all Mortgaged Property
and (D) all 


 


57

















 


commercial tort claims
seeking damages of $3,000,000 or more in respect of which a complaint or a
counterclaim has been filed by any Loan Party (including a brief description
thereof) and that, in each case, (x) if so owned or filed by a Loan Party
as of the Restatement Effective Date would have been required to be set forth
on the applicable schedule to the Collateral Agreement or to the Perfection
Certificate pursuant to the terms thereof and (y) have not been set forth
on a certificate previously delivered pursuant to this clause (j), or (ii) certifying
that there has been no change (other than any change that could not reasonably
be expected to be adverse in any material respect to the creation or perfection
of the security interests in the Collateral on the terms and with the priority
contemplated by the Security Documents, or otherwise be adverse in any material
respect to the interest of the Lenders as secured parties) in the information
set forth in the certificate most recently delivered pursuant to this clause (j) or,
in the case of the first such certificate delivered after the Restatement
Effective Date, the information set forth on the applicable schedule to the
Collateral Agreement or to the Perfection Certificate;


 


(k) 
promptly after Moody’s or S&P shall have announced a change in the rating
or the outlook in effect for the Index Debt, written notice of such change; and


 


(l) 
such other information (including financial information and any information
required by the Patriot Act or any other “know your customer” or similar laws
or regulations) as the Agent or any Lender may from time to time reasonably
request.


 


The financial statements
(and the related audit opinions and certifications) required to be delivered by
the Borrower pursuant to clauses (a) and (b) of this Section 5.04
and the reports and statements required to be delivered by the Borrower
pursuant to clauses (e) and (f) of this Section 5.04 shall
be deemed to have been delivered (i) when reports containing such
financial statements (and the related audit opinions and certifications) or
other materials are posted on the Borrower’s website on the internet at
http://ir.janus.com (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
www.sec.gov 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.  Notices of Material Events.  Promptly and in any event within five
Business Days after a Responsible Officer of the Borrower becomes aware
thereof, the Borrower will give notice in writing to the Agent and the Lenders
of the occurrence of (a) any Default or Event of Default or (b) any
other development, financial or otherwise, which has resulted or 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 (other than the Excluded 


 


58

















 


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 (other than the Excluded Subsidiary) to,
permit the Agent and the Lenders to make reasonable inspections during regular
business hours of the properties, corporate books and financial records of the
Borrower or any such Subsidiary, to make reasonable examinations and copies of
the books of accounts and other financial records of the Borrower or any such
Subsidiary, and to discuss the affairs, finances and accounts of the Borrower
or any such Subsidiary with, and to be advised as to the same by, its
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, (b) unless a Default or Event of Default
shall have occurred and be continuing, there shall be no more than two such
inspections during any fiscal year and (c) 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 solely for the purposes set forth in Section 3.12.


 


SECTION 5.08.  Information Regarding Collateral; Deposit
Accounts; Securities Accounts.  (a) 
The Borrower will furnish to the Agent prompt written notice of any change in (i) the
legal name of any Loan Party, as set forth in its organizational documents, (ii) the
jurisdiction of organization or the form of organization of any Loan Party
(including as a result of any merger or consolidation), (iii) the location
of the chief executive office of any Loan Party or (iv) the organizational
identification number, if any, or, with respect to any Loan Party organized
under the laws of a jurisdiction that requires such information to be set forth
on the face of a Uniform Commercial Code financing statement, the Federal
Taxpayer Identification Number of such Loan Party.  The Borrower agrees not to effect or permit
any change referred to in the preceding sentence unless all filings have been
made under the Uniform Commercial Code or otherwise that are required in order
for the Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral.


 


(b) 
The Borrower will furnish to the Agent prompt written notice of (i) the
acquisition by any Loan Party of, or any real property interest otherwise
becoming, a Mortgaged Property after the Restatement Effective Date and (ii) the
acquisition by any Loan Party of any other material assets after the
Restatement Effective Date, other than any assets constituting Collateral under
the Security Documents in which the Agent shall have a valid, legal and
perfected security interest (with the priority contemplated by the applicable
Security Document) upon the acquisition thereof.


 


(c) 
The Borrower will cause all cash owned by the Borrower and the Domestic
Subsidiaries at any time, other than cash held in the ordinary course of
business solely for the payment of salaries and wages, workers’ compensation
and similar expenses and other cash in an aggregate amount not to exceed
$5,000,000 at any time, to be held in deposit accounts maintained in the name
of one or more Loan Parties and will, in each case as promptly as practicable,
notify the Agent of the 


 


59

















 


existence of any deposit
account maintained by a Loan Party in respect of which a Control Agreement is
required to be in effect pursuant to clause (f) of the definition of
the term “Collateral and Guarantee Requirement” but is not yet in effect.


 


(d) 
The Borrower will cause all securities owned by the Borrower and the Domestic
Subsidiaries at any time, other than (i) Equity Interests in the
Subsidiaries, (ii) securities beneficially owned by any customer and (iii) securities
representing ownership interests in mutual funds, to be held in separate
securities accounts maintained in the name of one or more Loan Parties and
will, in each case as promptly as practicable, notify the Agent of the
existence of any securities account maintained by a Loan Party in respect of
which a Control Agreement is required to be in effect pursuant to clause (f) of
the definition of the term “Collateral and Guarantee Requirement” but is not
yet in effect.


 


SECTION 5.09.  Additional Subsidiaries.  If any Subsidiary is formed or acquired after
the Restatement Effective Date, the Borrower will, within 10 Business Days
after such Subsidiary is formed or acquired, notify the Agent thereof and
within 15 Business Days (or, in the case of any Foreign Subsidiary,
30  Business Days) after such Subsidiary is formed or acquired (or, in
each case, such longer period as may be agreed to by the Agent) cause the
Collateral and Guarantee Requirement to be satisfied with respect to such
Subsidiary (if it is a Designated Subsidiary) and with respect to any Equity
Interest in or Indebtedness of such Subsidiary owned by a Loan Party.


 


SECTION 5.10.  Further Assurances.  The Borrower will, and will cause each
Subsidiary Loan Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings,
mortgages and other documents), that may be required under any applicable law,
or that the Agent may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied at all times or otherwise to effectuate
the provisions of the Loan Documents, all at the expense of the Loan
Parties.  The Borrower will provide to
the Agent, from time to time upon reasonable request, evidence reasonably
satisfactory to the Agent as to the perfection and priority of the Liens
created or intended to be created by the Security Documents.


 


ARTICLE VI


 


NEGATIVE COVENANTS


 


The Borrower covenants and
agrees with each Lender 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 of Subsidiaries.  The Borrower will not permit any Subsidiary
(other than the Excluded Subsidiary) to incur, create or suffer to exist any
Indebtedness, except:


 


60

















 


(a) 
Indebtedness incurred to finance the acquisition, repair or improvement of any
fixed or capital assets, including Capitalized Lease Obligations (and any
Replacement Indebtedness in respect thereof); provided that (i) the
principal amount of such Indebtedness shall not exceed the purchase price of
such assets or the cost of such repair or improvement, (ii) such
Indebtedness (and any Replacement Indebtedness in respect thereof) shall not be
secured by any Lien on any assets other than the assets so acquired, repaired
or improved and (iii) the aggregate principal amount of such Indebtedness
and such Replacement Indebtedness, when taken together with the aggregate
principal amount of any Indebtedness incurred under clause (j) of this Section 6.01,
shall not exceed $15,000,000 at any time outstanding;


 


(b) 
Indebtedness of any Subsidiary to the Borrower or any other Subsidiary; provided
that (i) any such Indebtedness owing by any Loan Party shall be
subordinated to the Obligations on terms no less favorable to the Lenders than
those set forth in Exhibit G, (ii) any such Indebtedness owing to any
Loan Party shall be evidenced by a promissory note, which may be a global note,
and shall have been pledged pursuant to the Collateral Agreement and (iii) any
such Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or
any other Loan Party shall be incurred in compliance with Section 6.09(b);


 


(c) 
Indebtedness created under the Loan Documents;


 


(d) 
Attributable Debt in connection with any Sale-Leaseback Transaction permitted
pursuant to Section 6.03;


 


(e) 
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 or in connection with such
Person becoming a Subsidiary;


 


(f) 
Indebtedness existing on the Restatement Effective Date and set forth on
Schedule 6.01 and any Replacement Indebtedness in respect thereof;


 


(g) 
Guarantees of Indebtedness permitted under clauses (a) through (d) of
this Section 6.01; provided that such Guarantees comply with Section 6.09;


 


(h) 
Indebtedness owed in respect of netting services, overdraft protections and
similar arrangements, in each case incurred in the ordinary course of business
in connection with cash management and deposit accounts;


 


(i) 
Indebtedness incurred in the ordinary course of business and arising from
agreements or arrangements providing for surety, stay and appeal bonds or as an
account party in respect of letters of credit; provided that the
aggregate amount of Indebtedness in respect of letters of credit incurred in
reliance on this clause (i) shall not exceed $15,000,000 at any time
outstanding; and


 


61

















 


(j) 
other Indebtedness of any Subsidiary; provided that the aggregate
principal amount of all Indebtedness incurred under this clause (j), when
taken together with the aggregate principal amount of all Indebtedness incurred
under clause (a) of this Section 6.01, shall not exceed $15,000,000
at any time outstanding.


 


SECTION 6.02.  Liens.  The Borrower will
not, and will not permit any Subsidiary (other than the Excluded 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 created under the Loan Documents;


 


(b) 
Liens for Taxes 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;


 


(c) 
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 (other than Indebtedness) that are not more than
60 days past due or that are being contested in good faith by appropriate
proceedings;


 


(d) 
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;


 


(e) 
Liens arising out of deposits to secure leases, trade contracts, statutory
obligations, appeal bonds, performance bonds and other obligations of like
nature, in each case arising in the ordinary course of business;


 


(f) 
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;


 


(g) 
Liens existing on the Restatement Effective Date and described in
Schedule 6.02, and Liens extending or replacing such Liens; provided
that such Liens (including any such extension or replacement Liens) (i) secure
only those obligations that they secured on the Restatement Effective Date and
Replacement Indebtedness in respect thereof and (ii) extend only to the assets
that they encumbered on the Closing Date;


 


(h) 
Liens on fixed or capital assets securing Indebtedness permitted under Section 6.01(a) incurred
to finance the acquisition, repair or improvement of such assets (and any
Replacement Indebtedness in respect thereof); provided that such Liens
extend only to such assets;


 


62

















 


(i) 
Liens deemed to exist in connection with Permitted B Share Transactions; provided
that such Liens extend only to B Share Fees and not to any other assets of the
Borrower and the Subsidiaries;


 


(j) 
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;


 


(k) 
banker’s liens, rights of setoff or similar rights and remedies as to deposit
accounts or other funds maintained with depository institutions; provided
that such deposit accounts or funds are not established or deposited for the
purpose of providing collateral for any Indebtedness and are not subject to
restrictions on access by the Borrower or any Subsidiary in excess of those
required by applicable banking regulations;


 


(l) 
judgment Liens in respect of judgments that have not resulted in an Event of
Default under clause (j) of Article VII;


 


(m) 
any Lien existing on any property before the acquisition thereof or existing on
any property of any Person that becomes a Subsidiary after the Closing Date
before the time such Person becomes a Subsidiary, and Liens extending or
replacing such Liens; provided that (i) 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, (ii) no such Lien shall apply to any
other property and (iii) no such Lien shall secure obligations other than
the obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be, and Replacement
Indebtedness in respect thereof;


 


(n) 
Liens on the Excluded Securities and the Excluded Securities Accounts; provided
that (i) such Liens secure only obligations of the Borrower and the
Subsidiaries in respect of the Specified Hedging Agreements and (ii) such
Liens extend only to the Excluded Securities and the Excluded Securities
Accounts; and


 


(o) 
other Liens securing Indebtedness or other obligations in an aggregate
principal amount that, when taken together with the aggregate amount of all
Attributable Debt in connection with Sale and Leaseback Transactions permitted
under Section 6.03, does not exceed $10,000,000 at any time outstanding.


 


SECTION 6.03.  Sale and Lease-Back Transactions.  The Borrower will not, and will not permit
any Subsidiary (other than the Excluded 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”); provided that the Borrower or any 


 


63

















 


Subsidiary may enter into any Sale and Leaseback Transaction if (a) at
the time of such transaction no Default or Event of Default shall have occurred
and be continuing, (b) the proceeds from the sale of the subject property
shall be at least equal to its fair market value on the date of such sale and (c) the
aggregate amount of all Attributable Debt in connection with all Sale and
Leaseback Transactions of the Borrower and the Subsidiaries, when taken
together with the aggregate principal amount of all Indebtedness or other
obligations secured by Liens permitted under Section 6.02(o), does not
exceed $10,000,000 at any time outstanding.


 


SECTION 6.04.  Mergers, Consolidations and Transfers of
Assets.  The Borrower will not, and
will not permit any Subsidiary (other than the Excluded 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
any of its assets (whether now owned or hereafter acquired), including any
Equity Interests in any Subsidiary, and will not permit any wholly-owned
Subsidiary to issue any additional Equity Interests in such Subsidiary (other
than to the Borrower or any other Subsidiary); provided that:


 


(a) 
the Borrower and any Subsidiary may sell or license assets (including
Intellectual Property) in the ordinary course of business;


 


(b) 
the Borrower may sell or transfer assets in connection with Permitted B Share
True Sale Transactions;


 


(c) 
if at the time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing:


 


(i) 
any wholly owned Domestic Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation;


 


(ii) 
any Subsidiary may merge into or consolidate with any other Subsidiary (other
than the Excluded Subsidiary) in a transaction in which no Person other than
the Borrower or a Subsidiary Loan Party receives any consideration and if (x) either
of the merging or consolidating Subsidiaries is a Loan Party, the surviving or
resulting Subsidiary is a Loan Party or (y) either of the merging or
consolidating Subsidiaries is a wholly owned Subsidiary, the surviving or
resulting Subsidiary is a wholly-owned Subsidiary;


 


(iii) 
the Borrower and the Subsidiaries may sell, transfer, lease, license or
otherwise dispose of assets (other than (A) Equity Interests in INTECH or
Perkins or (B) securities of Stanfield Victoria Funding LLC) the Net
Proceeds of which do not exceed, when taken together with the Net Proceeds of
all other assets sold, transferred, leased, licensed or otherwise disposed of
on or after the Restatement Effective Date pursuant to this clause (iii),
$25,000,000 in the aggregate;


 


64
















 


(iv) 
subject to Section 5.01(c), the Borrower and the Subsidiaries may sell,
transfer or otherwise dispose of Equity Interests in INTECH or Perkins; provided
that, with respect to any such sale, transfer or other disposition, (x) the
Borrower shall have delivered to the Agent a certificate signed by a Financial
Officer of the Borrower setting forth the Applicable Percentage with respect
thereto and a reasonably detailed calculation thereof and (y) the Borrower
shall apply the Net Proceeds thereof to prepay Standby Loans (and other
Indebtedness) as required pursuant to Section 2.12(d); and


 


(v) 
the Borrower and the Subsidiaries may sell, transfer or otherwise dispose of
securities of Stanfield Victoria Funding LLC; provided that, with
respect to any such sale, transfer or other disposition, the Borrower shall
apply the Net Proceeds thereof to prepay Standby Loans as required pursuant to Section 2.12(d);


 


(d) 
the Borrower and the Subsidiaries may consummate any Sale and Leaseback
Transaction permitted under Section 6.03; and


 


(e) 
the Borrower and the Subsidiaries may make any sale, transfer, lease or other
disposition to the Borrower or any Subsidiary; provided that any such
sale, transfer, lease or other disposition involving a Subsidiary that is not a
Loan Party shall be made in compliance with Sections 6.05 and 6.09.


 


SECTION 6.05.  Transactions with Affiliates.  The
Borrower will not, and will not permit any Subsidiary (other than the Excluded
Subsidiary) to, sell or transfer any assets to, or purchase or acquire any
assets from, or otherwise engage in any other transactions with, any of its
Affiliates (other than the Borrower or any Subsidiary (other than the Excluded
Subsidiary)), except that the Borrower or any Subsidiary may engage in any of
the foregoing transactions 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.  Restrictive Agreements; Certain Other
Agreements.  (a)  The Borrower
will not, and will not permit any Subsidiary (other than the Excluded
Subsidiary) to, enter into, incur or permit to exist any agreement or other
arrangement that, directly or indirectly (through the application of financial
covenants or otherwise), prohibits or restricts the ability of any Subsidiary
to declare and pay dividends or other distributions with respect to its Equity
Interests or to make or repay any loans or advances to the Borrower or to
Guarantee Indebtedness of the Borrower; provided that the foregoing
shall not apply to prohibitions or restrictions (i) imposed by applicable
law or any Loan Document, (ii) contained in agreements relating to secured
Indebtedness permitted hereunder, if such prohibitions or restrictions apply
only to (A) assets other than cash securing such Indebtedness or (B) 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 (iii) contained in agreements relating to the sale
of a Subsidiary, or a business unit, division, product line or line of
business, 


 


65

















 


that are applicable solely pending such sale, if such prohibitions or
restrictions apply only to the Subsidiary, or the business unit, division,
product line or line of business, that is to be sold and such sale is permitted
hereunder.


 


(b) 
The Borrower will not, and will not permit any Subsidiary (other than the
Excluded Subsidiary) to, enter into, incur or permit to exist any agreement
(including any indenture or lease) or instrument containing any covenant
restricting the incurrence of Indebtedness or governing the Borrower’s and the
Subsidiaries’ financial condition if such covenant is either not comparable to
any covenant in this Agreement or is more restrictive than the analogous
covenant in this Agreement, unless the Borrower (i) has delivered a copy
of such agreement or instrument to the Agent not less than 10 Business Days
prior to executing the same and (ii) has entered into an amendment to this
Agreement to add such covenant, mutatis mutandis, or to conform the analogous
covenant in this Agreement to such more restrictive covenant.


 


SECTION 6.07.  Certain Financial Covenants.  The Borrower will not:


 


(a) 
permit the Leverage Ratio on any date to exceed 8.00:1.00;


 


(b) 
permit the Interest Coverage Ratio to be less than 2.00:1.00 for any period of
four fiscal quarters ending after the Restatement Effective Date; and


 


(c) 
permit Long-Term Assets Under Management
at any time to be less than or equal to the Minimum AUM.


 


SECTION 6.08.  Margin Stock.  The Borrower will not, and will not permit
any Subsidiary (other than the Excluded 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, subject to Section 6.10, the Borrower may repurchase its capital
stock pursuant to any stock buyback program approved by the Borrower’s Board of
Directors.  For purposes of this Section 6.08,
on any date of determination, Margin Stock and the total assets of the Borrower
and the Subsidiaries will be valued in a manner determined by the Borrower in
good faith and consistent with the requirements of Regulation U.


 


SECTION 6.09.  Investments, Loans, Advances and
Guarantees.  The Borrower will not,
and will not permit any Subsidiary (other than the Excluded Subsidiary) to,
purchase, hold, acquire (including pursuant to any merger or consolidation with
any Person that was not a Subsidiary prior thereto), make or otherwise permit
to exist any Investment in or, in the case of clause (b) below, purchase or
otherwise acquire (in one transaction or a series of transactions) all or
substantially all of the assets of:


 


(a) 
so long as the Borrower shall own any Equity Interests in Capital Group
Partners, 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 


 


66

















 


otherwise acquired by
Capital Group Partners from third parties prior to the Closing Date and (ii) make
Investments in Capital Group Partners in an aggregate principal amount not to
exceed $5,000,000 during any fiscal year; or


 


(b) 
any other Person, except:


 


(i) 
Permitted Investments;


 


(ii) 
Investments in the Borrower or any Subsidiary (other than the Excluded
Subsidiary); provided that (A) after the Restatement Effective Date, no
Subsidiary shall acquire any Equity Interest in the Borrower, (B) such
Subsidiary is a Subsidiary prior to the making of such Investments, (C) any
Equity Interests held by a Loan Party in any Subsidiary shall be pledged
pursuant to, and to the extent required by, the Collateral Agreement and (D) the
aggregate amount of such Investments by Loan Parties in Subsidiaries that are
not Loan Parties (excluding all such Investments existing on the Restatement
Effective Date and set forth on Schedule 6.09) shall not exceed
$15,000,000 at any time outstanding; provided  further that (x) no
Investment in any Subsidiary that is not a Loan Party may be made in reliance
on this clause (ii) at any time that an Event of Default shall have
occurred and be continuing and (y) notwithstanding the foregoing, the
Borrower and the Subsidiaries shall be permitted to make accounting balance
reconciliations through capital contributions, dividends and loan forgiveness,
in each case in the ordinary course of business and consistent with past cash
management practices;


 


(iii) 
Investments in seed financing for early-stage funds in an aggregate amount not
to exceed $150,000,000 at any time outstanding;


 


(iv) 
Investments made solely with the Net Proceeds from the issuance, after the Restatement
Effective Date, of common stock in the Borrower;


 


(v) 
Investments made as a result of the receipt of noncash consideration from a
sale, transfer, lease or other disposition of any asset in compliance with Section 6.04;


 


(vi) 
Investments in the form of (A) the Specified Hedging Agreements; (B) Hedging
Agreements entered into to (x) hedge or mitigate risks to which the
Borrower or any Subsidiary has actual exposure (other than in respect of Equity
Interests in or Indebtedness of the Borrower or any Subsidiary) or (y) effectively
cap, collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary; (C) any
call/put spread Hedging Agreement entered into in connection with convertible
Indebtedness of the Borrower; and (D) Hedging Agreements entered into 


 


67

















 


in connection with the
granting by the Borrower of long-term incentive awards under its “Mutual Fund
Share Investment Plan”, provided that such Hedging Agreements are
entered into in a manner consistent with past practices;


 


(vii) 
compensation, travel, lodging, business expenses, attorney’s expenses arising
from indemnification and litigation obligations and similar advances to
directors and employees of the Borrower or any Subsidiary to cover matters that
are expected at the time of such advances to be treated as expenses for
accounting purposes and that are made in the ordinary course of business;


 


(viii) 
the purchase or other acquisition by the Borrower or any Subsidiary of Equity
Interests in, or all or substantially all the assets of, any Person; provided
that (i) with respect to each such purchase or other acquisition, all
actions required to be taken to satisfy the requirements set forth in the term
“Collateral and Guarantee Requirement” shall have been taken (or arrangements
for the taking of such actions satisfactory to the Agent shall have been made)
and (ii) the aggregate consideration paid therefor, together with the
aggregate consideration paid for any other such purchase or acquisition
consummated after the Restatement Effective Date in reliance on this clause (viii) (including,
in each case, Indebtedness assumed in connection therewith) shall not exceed
$15,000,000;


 


(ix) 
(A) purchases of Equity Interests in INTECH and/or Perkins, in each case
in amounts and at prices required pursuant to (x) operating agreements or
similar governing documents of INTECH or Perkins, as the case may be, in each
case as such requirements are in effect on the Restatement Effective Date, (y) employment
agreements with officers of INTECH or Perkins, as the case may be, and (z) any
share liquidity or withholding program for employees or officers of INTECH or
Perkins, as the case may be, and (B) after October 1, 2009, other
purchases of Equity Interests in INTECH and/or Perkins so long as, after giving
effect thereto, (x) the Leverage Ratio, determined as of the end of the
fiscal quarter of the Borrower most recently then ended prior to the date of
the consummation thereof and for which financial statements shall have been
delivered pursuant to Section 5.04(a) or 5.04(b), but giving effect
on a pro forma basis to any Indebtedness incurred in connection with such
purchase, shall be less than 4.50:1.00, (y) no Loans shall be outstanding
and (z) no Default shall have occurred and be continuing;


 


(x) 
Investments in Janus Capital International Limited made for the sole purpose of
enabling Janus Capital International Limited to meet the minimum capital
maintenance requirements applicable to Janus Capital International Limited
under the rules and regulations of the FSA (and maintain regulatory
capital in excess thereof in an amount not to exceed 50% of such minimum
regulatory capital); provided that the 


 


68

















 


aggregate amount of such
Investments outstanding at any time shall not exceed the sum of (A) the
JCIL Distribution Amount as of such time and (B) £10,000,000; and


 


(xi)  Investments of customer cash and customer
securities.


 


SECTION 6.10.  Restricted Payments; Certain Payments of
Indebtedness.  (a)  The Borrower
will not, and will not permit any Subsidiary (other than the Excluded
Subsidiary) to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except that:


 


(i) 
any Subsidiary may declare and pay dividends or make other Restricted Payments
with respect to its capital stock, partnership or membership interests or other
similar Equity Interests, ratably to the holders of such Equity Interests;


 


(ii) 
so long as no Default shall have occurred and be continuing or would result
therefrom, the Borrower may declare and pay dividends or make other
distributions (A) with respect to its common stock (x) in an amount
not exceeding $0.04 per share during any fiscal year (subject to appropriate
adjustment for stock splits, stock dividends, share combinations and similar
transactions) or (y) payable in additional Equity Interests (other than
Disqualified Stock) or (B) with respect to its preferred Equity Interests
payable in cash or in additional Equity Interests (other than Disqualified
Stock);


 


(iii) 
in addition to the transactions permitted under Section 6.09(b)(ix) and
so long as no Default shall have occurred and be continuing or would result
therefrom, the Borrower and the Subsidiaries may make (A) Restricted
Payments to current or former directors, officers, employees or consultants of
the Borrower and the Subsidiaries pursuant to and in accordance with stock
option plans or other benefit plans or agreements of the Borrower or any
Subsidiary (the “Company Plans”), including in connection with the death
or disability of any such person, provided that the aggregate amount of
such payments made in the form of cash since the Restatement Effective Date
shall not exceed $10,000,000 in the aggregate; or (B) Restricted Payments
in the form of an exchange of outstanding stock options for new stock options
pursuant to and in accordance with the Company Plans;


 


(iv) 
the Borrower may make cash payments in lieu of the issuance of fractional
shares representing insignificant interests in the Borrower in connection with
the exercise of warrants, options or other securities convertible into or
exchangeable for Equity Interests in the Borrower;


 


(v) 
so long as no Default shall have occurred and be continuing or would result
therefrom, the Borrower and the Subsidiaries may make accounting balance
reconciliations among themselves through capital contributions, 


 


69

















 


dividends and loan
forgiveness, in each case in the ordinary course of business and consistent
with past cash management practices;


 


(vi) 
Restricted Payments in the form of any payment by the Borrower, or any
Subsidiary, as the case may be, on account of (A) any purchase,
redemption, retirement, acquisition, cancellation or termination of any Equity
Interests in INTECH and/or Perkins, in each case in amounts and at prices
required pursuant to (x) operating agreements or similar governing
documents of INTECH or Perkins, as the case may be, in each case as such
requirements are in effect on the Restatement Effective Date, (y) employment
agreements with officers of INTECH or Perkins, as the case may be, and (z) any
share liquidity or withholding program for employees or officers of INTECH or
Perkins, as the case may be, and (B) after October 1, 2009, any other
purchase, redemption, retirement, acquisition, cancellation or termination of
Equity Interests in INTECH and/or Perkins, so long as, after giving effect
thereto, (x) the Leverage Ratio, determined as of the end of the fiscal
quarter of the Borrower most recently then ended prior to the date of the
consummation thereof and for which financial statements shall have been
delivered pursuant to Section 5.04(a) or 5.04(b), but giving effect
on a pro forma basis to any Indebtedness incurred in connection with such
purchase, redemption, retirement, acquisiton, cancelation or termination shall
be less than 4.50:1.00, (y) no Loans shall be outstanding and (z) no
Default shall have occurred and be continuing; and


 


(vii) 
the Borrower may repurchase its preferred Equity Interests; provided
that (A) at the time thereof, and after giving effect thereto, no Default
shall have occurred and be continuing and no Loans shall be outstanding and (B) the
Leverage Ratio, determined, as of the end of the fiscal quarter of the Borrower
most recently then ended prior thereto for which financial statements shall
have been delivered pursuant to Section 5.04(a) or 5.04(b), on a pro
forma basis to give effect to such repurchase and the incurrence of any
Indebtedness in connection therewith, shall not exceed 3.50:1.00.


 


(b) 
The Borrower will not, and will not permit any Subsidiary (other than the
Excluded Subsidiary) to, pay or make or agree to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account
of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Indebtedness, except:


 


(i) 
payments of or in respect of Indebtedness created under the Loan Documents;


 


(ii) 
payments of regularly scheduled interest and regularly scheduled, or so long as
no Loans are outstanding, mandatory principal payments, in each case as and
when due in respect of any Indebtedness;


 


70

















 


(iii) 
the refinancing or replacement of Indebtedness with Replacement Indebtedness to
the extent permitted by Section 6.01;


 


(iv) 
payments of secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of assets securing such Indebtedness in transactions permitted
hereunder;


 


(v) 
payments of Indebtedness required to be made pursuant to Section 6.04(c)(iv);


 


(vi) 
payments of Indebtedness of any Loan Party to any other Loan Party;


 


(vii) 
payments of, or in respect of, Indebtedness made solely with Equity Interests
(other than Disqualified Stock);


 


(viii) 
subject to Section 2.12(d), payments of Indebtedness made solely with the
Net Proceeds from the issuance, after the Restatement Effective Date, of common
or preferred stock in the Borrower; and


 


(ix) 
other payments of Indebtedness; provided that at the time each such
payment is made, no Default shall have occurred and be continuing, or would
result therefrom and (B) immediately prior to, and after giving effect to
each such payment, no Loans shall be outstanding.


 


SECTION 6.11.  Limitations on Conduct of Business.  Without limiting Section 5.01(a), the
Borrower will not permit any Subsidiary existing on the Restatement Effective
Date that is not a Subsidiary Loan Party to engage in any business or line of
business or conduct any business activities materially different from the
business, line of business or business activities conducted by such Subsidiary
on the Restatement Effective Date.


 


SECTION 6.12.  Concerning Janus Capital International
Limited.  (a)  In the event that
the aggregate amount of the regulatory capital of Janus Capital International
Limited as of the end of any quarter, determined under the rules and
regulations of the FSA, exceeds an amount equal to 150% of the minimum amount
of the regulatory capital required to be maintained by Janus Capital
International Limited as of the end of such quarter pursuant to such rules and
regulations, the Borrower will cause Janus Capital International Limited to
make, within 60 days following the end of such quarter and to the extent the
making thereof is not prohibited by applicable law or regulation, a dividend,
distribution or other Restricted Payment in cash to Janus International Holding
LLC in an amount approximately equal to the amount of such excess.


 


(b)  Notwithstanding
anything to the contrary in Section 6.04 or 6.09(b), at all times on and
after the Restatement Effective Date the Borrower shall cause Janus Capital
International Limited to be a wholly-owned subsidiary of Janus International
Holding LLC.


 


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ARTICLE VII


 


EVENTS OF DEFAULT


 


In case of the occurrence 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 report,
certificate or other information 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 incorrect in any material respect 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 clause (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 5.07
or Article VI; provided that, solely in the case of Section 6.07(c),
such breach shall continue unremedied for a period of 10 days;


 


(e) 
the breach by the Borrower or any other Loan Party (other than a breach which
constitutes an Event of Default under clause (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 (other than the Excluded
Subsidiary) to pay any Material Indebtedness; 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 Material Indebtedness shall cause, or permit the
holder or holders of such Indebtedness or a trustee or other representative
acting on their behalf or, in the case of any Hedging Agreement, the applicable
counterparty, to cause, such Material Indebtedness to become due prior to its
stated maturity, or to require the prepayment, redemption, repurchase or
defeasance thereof prior to its stated maturity or, in the case of any Hedging
Agreement, to cause the termination thereof; provided that this clause (f) shall
not apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the assets securing such Indebtedness;


 


(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, 


 


72

















 


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 clause (g) or (vii) fail to contest in good faith
any appointment or proceeding described in the following clause (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 subclause (v) of the preceding
clause (g) shall be instituted against the Borrower or any Subsidiary
and such appointment shall continue undischarged or such proceeding shall
continue undismissed or unstayed, in each case, 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 GAAP) that in the aggregate for all
properties and assets so appropriated or taken during the term of this
Agreement exceed 7.5% of Consolidated Total Assets 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 (i) 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 (ii) 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
that could reasonably be expected to result in liability of the Borrower or any
member of the Controlled Group in an aggregate amount exceeding $25,0000,000 or
any Withdrawal Liability in excess of $25,000,000 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 $25,000,000 or a determination that a 


 


73

















 


Multiemployer Plan with
respect to which the potential Withdrawal Liability of the Borrower or any
member of the Controlled Group would exceed $25,000,000 is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of
ERISA, or in endangered or critical status, within the meaning of Section 305
of ERISA or Section 432 of the Code;


 


(l) 
a Change in Control shall have occurred;


 


(m) 
any Loan Document shall cease at any time to be valid, enforceable or in full
force and effect, except in accordance with the terms thereof, or the Borrower
or any Subsidiary shall so assert in writing;


 


(n) 
any Lien purported to be created under any Security Document shall cease to be,
or shall be asserted by any Loan Party not to be, a valid and perfected Lien on
any material Collateral, with the priority required by the applicable Security
Document, except as a result of a sale or transfer of the applicable Collateral
in a transaction permitted under the Loan Documents; or


 


(o) 
any Guarantee purported to be created under any Loan Document shall cease to
be, or shall be asserted by any Loan Party not to be, in full force and effect,
except upon the consummation of any transaction permitted under this Agreement
as a result of which the Subsidiary Loan Party providing such Guarantee ceases
to be a Subsidiary or upon the termination of such Loan Document in accordance
with its terms;


 


then, and in every such
event (other than an event with respect to the Borrower described in
clause (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 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 clause (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.


 


74
















 


ARTICLE VIII


 


THE AGENT


 


Each of the Lenders and the
Syndication Agent hereby irrevocably appoints the entity named as Agent in the
heading of this Agreement to serve as administrative and collateral agent under
the Loan Documents, and authorizes the Agent to take such actions and to
exercise such powers as are delegated to the Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto.  The Lenders and the Syndication
Agent hereby authorize the Agent, and the Agent hereby agrees, to hold any
Collateral pledged under any Foreign Pledge Agreement governed by the laws of
England or Wales in trust for the benefit of the Secured Parties.  The provisions of this Article are
solely for the benefit of the Lenders, and none of the Borrower nor any other
Loan Party shall have any rights as a third party beneficiary of any such
provisions.


 


The Person serving as the
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Agent, and such Person and its Affiliates may accept deposits from, lend money
to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if such Person were not the Agent hereunder and
without any duty to account therefor to the Lenders.


 


The Agent shall not have any
duties or obligations except those expressly set forth in the Loan
Documents.  Without limiting the
generality of the foregoing, (a) the Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Agent shall not have any duty to take any
discretionary action or to exercise any discretionary power, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Agent is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in the Loan Documents), provided
that the Agent shall not be required to take any action that, in its opinion,
could expose the Agent to liability or be contrary to any Loan Document or
applicable law, and (c) except as expressly set forth in the Loan
Documents, the Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower,
any Subsidiary or any Affiliate of any of the foregoing that is communicated to
or obtained by the Person serving as Agent or any of its Affiliates in any
capacity.  The Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as the Agent shall believe in good faith to be
necessary, under the circumstances as provided in Section 9.08) or in the
absence of its own gross negligence or wilful misconduct.  The Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to
the Agent by the Borrower or a Lender, and the Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii) the
contents of any 


 


75

















 


certificate, report or other
document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of
any condition set forth in Article IV or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to
the Agent or satisfaction of any condition that expressly refers to the matters
described therein being acceptable or satisfactory to the Agent.


 


The Agent shall be entitled
to rely, and shall not incur any liability for relying, upon any notice,
request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person (including, if applicable, a
Financial Officer of such Person).  The
Agent also may rely, and shall not incur any liability for relying, upon any
statement made to it orally or by telephone and believed by it to be made by
the proper Person (including, if applicable, a Financial Officer or a
Responsible Officer of such Person).  The
Agent may consult, including in connection with any determination by the Agent
pursuant to its authority set forth in the definition of the term “Collateral
and Guarantee Requirement”, with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any determination made or action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.


 


The Agent may perform any of
and all its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Agent.  The Agent and any such sub-agent
may perform any of and all their duties and exercise their rights and powers
through their respective Related Parties. 
The exculpatory provisions of this Article VIII shall apply to any
such sub-agent and to the Related Parties of the Agent and any such sub-agent,
and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Agent.


 


Subject to the appointment
and acceptance of a successor Agent as provided in this paragraph, the Agent
may resign at any time by notifying the Lenders and the Borrower.  Upon receipt of any such notice of
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 its appointment as Agent hereunder by a successor, 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 and under the other Loan
Documents.  After the Agent’s resignation
hereunder and under the other 


 


76

















 


Loan Documents, the
provisions of this Article VIII and Section 9.05 shall continue in
effect for the benefit of such retiring Agent, its sub agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Agent.


 


Each Lender acknowledges
that it has, independently and without reliance upon the Agent, the arrangers
or any other Lender, or any of the Related Parties of any of the foregoing, 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, the arrangers or any other
Lender, or any of the Related Parties of any of the foregoing, 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, any other Loan Document or any related agreement or
any document furnished hereunder or thereunder.


 


Each Lender, by delivering
its signature page to the Amendment Agreement or delivering its signature page to
an Assignment and Assumption pursuant to which it shall become a Lender
hereunder, shall be deemed to have acknowledged receipt of, and consented to
and approved, each Loan Document and each other document required to be
delivered to, or be approved by or satisfactory to, the Agent or the Lenders on
the Restatement Effective Date.


 


Each Lender agrees (a) to
reimburse the Agent, on demand, in the amount of its pro rata share (based on
its Commitment hereunder or, if the Total Commitment shall be terminated, the
percentage it holds of the aggregate outstanding principal amount of the Loans)
of any expenses incurred for the benefit of the Lenders by the Agent, including
counsel fees and compensation of agents and employees paid for services
rendered on behalf of the Lenders, which shall not have been reimbursed by the
Borrower and (b) to indemnify and hold harmless the Agent and any of its
Related Parties, on demand, in the amount of such pro rata share, from and
against any and all claims for liabilities, Taxes, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against it in its capacity as the Agent or any of them in any way
relating to or arising out of this Agreement or any other Loan Document or any
action taken or omitted by it or any of them under this Agreement or any other
Loan Document, to the extent the same shall not have been reimbursed by the
Borrower; provided that no Lender shall be liable to the Agent or any of
its Related Parties for any portion of such claim for liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent that such claim is determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or wilful misconduct of the Agent or any of its
Related Parties.  The obligations of the
Lenders under this Article VIII shall survive the payment of all amounts
due under any Loan Document and the termination of this Agreement.


 


No Secured Party shall have
any right individually to realize upon any of the Collateral or to enforce any
security interest in the Collateral or Guarantee of the 


 


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Obligations, it being
understood and agreed that all powers, rights and remedies under the Loan
Documents may be exercised solely by the Agent on behalf of the Secured Parties
in accordance with the terms thereof.  In
the event of a foreclosure by the Agent on any of the Collateral pursuant to a
public or private sale or other disposition, the Agent or any Lender may be the
purchaser or licensor of any or all of such Collateral at any such sale or
other disposition, and the Agent, as agent for and representative of the
Secured Parties (but not any Lender or Lenders in its or their respective
individual capacities unless Required Lenders shall otherwise agree in writing)
shall be entitled, for the purpose of bidding and making settlement or payment
of the purchase price for all or any portion of the Collateral sold at any such
public sale, to use and apply any of the Obligations as a credit on account of
the purchase price for any collateral payable by the Agent on behalf of the
Secured Parties at such sale or other disposition.  Each Secured Party, whether or not a party
hereto, will be deemed, by its acceptance of the benefits of the Collateral and
of the Guarantees of the Obligations provided under the Loan Documents, to have
agreed to the foregoing provisions.


 


Notwithstanding anything
herein to the contrary, no Person named on the cover page of this
Agreement as an Arranger or Syndication Agent shall have any duties or
obligations under this Agreement or any other Loan Document (except in its
capacity, as applicable, as a Lender), but all such Persons shall have the
benefit of the indemnities provided for hereunder.


 


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 as follows:


 


(a) 
if to the Borrower, to it at 151 Detroit Street, Denver, CO 80206 Attention
of Senior Vice President and Treasurer (Fax No. (303) 316-5651);
with a copy to General Counsel (Fax No. (303) 316-5728);


 


(b) 
if to the Agent, to it at Citigroup Global Loans, 1615 Brett Road, OPS 3, New
Castle, DE 19720, Attention of Mark Rosenthal (Fax No. (212) 994-0961);
and


 


(c) 
if to a Lender, to it at its address (or fax 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 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 or 


 


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in accordance with the
latest unrevoked direction from such party given in accordance with this
Section; 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 or on behalf of the Agent or the
Lenders, 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.  Effectiveness.  This Agreement shall become effective as
provided in the Amendment Agreement. 
Delivery of an executed signature page of any Loan Document by
facsimile transmission or electronic transmission (PDF) shall be effective as
delivery of a manually executed counterpart thereof.


 


SECTION 9.04.  Successors and Assigns.  (a)  The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Agent and each Lender (and
any attempted assignment or transfer by the Borrower without such consent shall
be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section 9.04.  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, participants
(to the extent provided in paragraph (e) of this Section 9.04), the
Arrangers, the Syndication Agent and the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(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) except in the case of an assignment of the entire
remaining amount of the Commitment or Loans (subject to, in the case of
Competitive Loans, the final sentence of this paragraph) the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Agent) shall not be less than $10,000,000 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 Assumption and the
Lenders party to such Assignment and Assumption shall pay to the Agent a
processing and recordation fee of 


 


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$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, from and after the effective date specified in each Assignment
and Assumption, (A) the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement and (B) the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all or the
remaining portion of an assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto (but shall continue to
be entitled to the benefits of Sections 2.13, 2.15, 2.19 and 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) 
The Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the 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.


 


(d) 
Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, 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 Assumption and (ii) record
the information contained therein in the Register.


 


(e) 
(i)  Each Lender may, without the consent of the Borrower or the Agent, sell
to any Person (other than the Borrower) that shall have represented to such
Lender that such Person is not (A) an Affiliate of the Borrower or (B) an
investment manager, any investment company or any similar entity that, in each
case, is managed or advised by the Borrower or an Affiliate of the Borrower,
participations 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 that (x) such Lender’s obligations under this
Agreement shall remain unchanged, (y) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (z) the Borrower, the Agent and the other Lenders shall continue to 


 


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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; provided however
that the agreement or instrument pursuant to which such Lender sells a
participation may provide that such Lender will not, without the consent of the
participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.08(b) or in Section 9.08A.  A participant shall be entitled to the
benefit of the cost protection provisions contained in Sections 2.13, 2.15
and 2.19 to the same extent as it were a Lender; provided, however,
that a participant shall not be entitled to receive any more than the selling
Lender would have received had it not sold the participation.


 


(ii) 
Each Lender that sells a participation shall, acting solely for this purpose as
an agent of the Borrower, maintain a record of each participant and the
principal amounts (and stated interest) of each participant’s interest in the
Loans or other obligations under this Agreement (the “Participant Register”).  The entries in the Participant Register shall
be conclusive absent manifest error, and such Lender shall treat each Person
whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement.


 


(f) 
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 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 


 


81

















 


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.


 


(g) 
Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section 9.04 shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


SECTION 9.05.  Expenses; Indemnity.  (a)  The Borrower agrees to pay all
reasonable and invoiced out-of-pocket expenses incurred by the Agent and its
Affiliates in 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 and except for such costs and expenses incurred after the
termination of this Agreement), or incurred by the Agent or any Lender in
connection with the enforcement or protection of its rights in connection with
this Agreement, the other Loan Documents or the Loans made hereunder, including
the reasonable and invoiced fees, charges and disbursements of Cravath, Swaine &
Moore 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 that arise from or are connected to the execution and
delivery of this Agreement or any of the other Loan Documents.


 


(b) 
The Borrower agrees to indemnify the Agent (and any sub-agent thereof), each
Lender, the Arrangers, the Syndication Agent, and each Related Party of any of
the foregoing (each such Person being called an “Indemnitee”) against,
and to hold each Indemnitee harmless from, any and all claims, liabilities and
expenses (including reasonable and invoiced counsel fees, charges and
disbursements of one counsel selected by the Agent for all the Indemnitees,
such local counsel as the Agent may in good faith deem advisable and, in the
event the Agent shall have determined that a conflict of interest makes it
inadvisable for a single counsel to represent all the Indemnitees, such
additional counsel as may be required by reason of such conflict), incurred by
or asserted against any Indemnitee arising out of or in connection with 


 


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(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 based on contract, tort or
any other theory and whether initiated against or by any party to this
Agreement or any other Loan Document, any Affiliate of any of the foregoing or
any third party (and regardless of whether any Indemnitee is a party thereto); provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such claim (whether brought by a Lender or any other Person), damage,
liability or expense is 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 or any other Loan
Document or any agreement or instrument contemplated thereby.  Each of the parties hereto also agrees not to
assert any claim for special, indirect, consequential or punitive damages
against any Loan Party, the Agent, any Arranger, the Syndication Agent, any
Lender or any Related Party of any of the foregoing 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 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 shall be payable on written demand therefor.


 


SECTION 9.06.  Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates 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 obligations at any time owing
by such Lender or Affiliate 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 owed to 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 and
each Affiliate under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender and such Affiliate
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.


 


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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 or extend the date for payment of the Facility Fees or
Utilization Fees of any Lender without the prior written consent of such
Lender, (iii) amend or modify the provisions of Section 2.16, the
provisions of this Section or the definition of “Required Lenders” without
the prior written consent of each Lender or (iv) release Janus Capital
Management LLC from the LLC Guarantee, or limit its liability in respect of the
LLC Guarantee, in any case without the prior written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Agent or the Swingline Lender hereunder without the
prior written consent of the Agent or the Swingline Lender, as the case may
be.  Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by the Borrower, the Required Lenders and the Agent if (A) by the
terms of such agreement the Commitment of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (B) at the time such amendment becomes effective, each
Lender not consenting thereto receives payment in full of the principal of and
interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement; provided that the Borrower
may prevent any such amendment from becoming effective by a notice delivered to
the Agent at any time prior to such effectiveness, in which case the
Commitments of the non-consenting Lenders will not terminate and their Loans
will not be required to be repaid.  Each
Lender shall be bound by any waiver, amendment or modification authorized by
this Section and any consent by any Lender pursuant to this Section shall
bind any Person subsequently acquiring a Loan from it.


 


SECTION 9.08A.  Certain Amendments.  (a)  Notwithstanding any other provision
contained herein, (i) all references in Section 9.08(b) to the
Facility Fees and


 


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the Utilization Fees will be
deemed to be references to the Commitment Fees (it being understood that the
aggregate amount of the fees and interest payable to the Lenders hereunder will
under all circumstances be greater than under the Existing Credit Agreement)
and (ii) all references in Section 9.08(b) to the Swingline
Lender shall be disregarded.  No
agreement referred to in Section 9.08 shall (A) release the Borrower
or any other material Loan Party from its Guarantee under the Collateral
Agreement (except as expressly provided herein or in the Collateral Agreement),
or limit its liability in respect of such Guarantee, without the prior written
consent of each Lender or (B) release all or substantially all of the
Collateral from the Liens of the Security Documents, without the prior written
consent of each Lender.


 


(b)  Subject to Section 9.08
and paragraph (a) of this Section 9.08A, neither any Loan Document
(other than this Agreement or the Fee Letter) nor any provision thereof may be
amended or modified except pursuant to an agreement or agreements in writing entered
into by the Agent and the Loan Party or Loan Parties that are party thereto, in
each case with the consent of the Required Lenders.


 


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 


 


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AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


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.


 


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 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)  Each party to
this Agreement hereby irrevocably and unconditionally submits, for itself and
its property, to the exclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against any other party or its properties in the courts of any jurisdiction.


 


(b) 
Each party to this Agreement 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 


 


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will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.


 


SECTION 9.16.  Confidentiality; Material Non-Public
Information.  (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 any other party to this Agreement
for purposes directly related to this Agreement or any other Loan Document; (iv) in
connection with any suit or proceeding relating to this Agreement or any other
Loan Document; (v) subject to an agreement containing confidentiality
undertakings substantially similar to those of this Section, to (A) any
assignee of or participant in, or any prospective assignee of or participant
in, any of its rights or obligations under this Agreement or (B) any
actual or prospective counterparty (or its Related Parties) to any swap or
derivative transaction relating to the Borrower or any Subsidiary and its
obligations; (vi) 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; or (vii) to the extent the Borrower shall have consented to
such disclosure in writing.  As used in
this Section, “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 Lender acknowledges that Information furnished to it pursuant to this
Agreement may include material non—public information concerning the Borrower
and its Affiliates or the Borrower’s securities, and confirms that it has
developed compliance procedures regarding the use of material non-public information
and that it will handle such material non-public information in accordance with
those procedures and applicable law, including Federal and state securities
laws.


 


(c) 
All information, including requests for waivers and amendments, furnished by
any Borrower or the Agent pursuant to, or in the course of administering, this
Agreement will be syndicate-level information, which may contain material
non-public information about the Borrower and its Affiliates or the Borrower’s
securities.  Accordingly, each Lender
represents to the Borrower and the Agent that it has identified in its
Administrative Questionnaire a credit contact who may receive information that
may contain material non-public information in accordance with its compliance
procedures and applicable law, including Federal and state securities laws.


 


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(d) 
Each Transferee shall be deemed, by accepting any assignment or participation
hereunder, to have agreed to be bound by this Section.


 


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), (c), (f), (g), (h), (i), (k) and
(l) (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 oploanswebadmin@citigroup.com
(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 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 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 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 


 


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the Agent, its Affiliates or
any of its Related Parties (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 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.  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 “Patriot Act”) hereby notifies the Borrower that pursuant to
the requirements of the Patriot 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 Patriot Act.


 


SECTION 9.19.  No Fiduciary Relationship.  The Borrower, on behalf of itself and the
Subsidiaries, agrees that in connection with all aspects of the Transactions
and any communications in connection therewith, the Borrower, the Subsidiaries
and their Affiliates, on the one hand, and the Agent, the Lenders and their
Affiliates, on the other hand, will have a business relationship that does not
create, by implication or otherwise, any fiduciary duty on the part of the
Agent, any Lender or any of their Affiliates, and no such duty will be deemed
to have arisen in connection with any such transactions or communications.


 


SECTION 9.20.  Release of Liens and Guarantees.  A Subsidiary Loan Party shall automatically
be released from its obligations under the Loan Documents, and all security
interests created by the Security Documents in Collateral owned by such
Subsidiary Loan Party shall be automatically released, upon the consummation of
any transaction permitted by this Agreement as a result of which such
Subsidiary Loan Party ceases to be a Subsidiary.  Upon any sale or other transfer by any Loan
Party (other than to the Borrower or any Subsidiary) of any Collateral in a
transaction permitted under this Agreement, or upon the effectiveness of any
written consent to the release of the security interest created under any
Security Document in any Collateral pursuant to Section 9.08A, the
security interests in such Collateral created by the Security Documents shall
be automatically released.  In connection
with any termination or release pursuant to this Section, the Agent shall
execute and deliver to any Loan Party, at such Loan Party’s expense, all
documents that such Loan Party shall reasonably request to evidence such
termination or release.  Any execution
and delivery of documents pursuant to this Section shall be without
recourse to or warranty by the Agent.


 


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