Exhibit
10.1


 


EXECUTION VERSION


 


	
   

  



 


$100,000,000


 


364-DAY
COMPETITIVE ADVANCE AND

REVOLVING CREDIT FACILITY AGREEMENT


 


dated
as of October 4, 2010,


 


among


 


JANUS
CAPITAL GROUP INC.,


 


THE
LENDERS PARTY HERETO,


 


and


 


JPMORGAN
CHASE BANK, N.A.,

as Administrative Agent


 






 


J.P.
MORGAN SECURITIES LLC


 


and


 


BANC
OF AMERICA SECURITIES LLC,


 


as
Joint Lead Arrangers and Joint Bookrunners


 


	
   

  



 

















 


TABLE
OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
  Defined
  Terms

  	
  1

  
	
  SECTION 1.02

  	
  Terms
  Generally

  	
  25

  
	
  SECTION 1.03

  	
  Accounting
  Terms

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE II THE CREDITS

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
  Commitments

  	
  26

  
	
  SECTION 2.02

  	
  Loans

  	
  26

  
	
  SECTION 2.03

  	
  Competitive
  Bid Procedure

  	
  27

  
	
  SECTION 2.04

  	
  Standby
  Borrowing Procedure

  	
  30

  
	
  SECTION 2.05

  	
  Swingline
  Loans

  	
  30

  
	
  SECTION 2.06

  	
  Standby
  Interest Elections

  	
  32

  
	
  SECTION 2.07

  	
  Fees

  	
  33

  
	
  SECTION 2.08

  	
  Repayment
  of Loans; Evidence of Debt

  	
  33

  
	
  SECTION 2.09

  	
  Interest
  on Loans

  	
  34

  
	
  SECTION 2.10

  	
  Default
  Interest

  	
  35

  
	
  SECTION 2.11

  	
  Alternate
  Rate of Interest

  	
  35

  
	
  SECTION 2.12

  	
  Termination
  and Reduction of Commitments

  	
  35

  
	
  SECTION 2.13

  	
  Extension
  of Maturity Date

  	
  36

  
	
  SECTION 2.14

  	
  Prepayment

  	
  37

  
	
  SECTION 2.15

  	
  Reserve
  Requirements; Change in Circumstances

  	
  37

  
	
  SECTION 2.16

  	
  Change in
  Legality

  	
  39

  
	
  SECTION 2.17

  	
  Indemnity

  	
  39

  
	
  SECTION 2.18

  	
  Pro Rata
  Treatment

  	
  40

  
	
  SECTION 2.19

  	
  Sharing of
  Setoffs

  	
  40

  
	
  SECTION 2.20

  	
  Payments

  	
  41

  
	
  SECTION 2.21

  	
  Taxes

  	
  41

  
	
  SECTION 2.22

  	
  Termination
  or Assignment of Commitments under Certain Circumstances

  	
  44

  
	
  SECTION 2.23

  	
  Lending
  Offices and Lender Certificates; Survival of Indemnity

  	
  45

  
	
  SECTION 2.24

  	
  Defaulting
  Lenders

  	
  45

  
	
   

  	
   

  
	
  ARTICLE III REPRESENTATIONS AND
  WARRANTIES

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
  Corporate
  Existence and Standing

  	
  47

  
	
  SECTION 3.02

  	
  Authorization
  and Validity

  	
  47

  
	
  SECTION 3.03

  	
  No
  Conflict; Governmental Consent

  	
  47

  
	
  SECTION 3.04

  	
  Compliance
  with Laws; Environmental and Safety Matters

  	
  47

  
	
  SECTION 3.05

  	
  Financial
  Statements

  	
  48

  
	
  SECTION 3.06

  	
  No
  Material Adverse Change

  	
  48

  



 


i

















 


	
  SECTION 3.07

  	
  Subsidiaries

  	
  48

  
	
  SECTION 3.08

  	
  Litigation

  	
  49

  
	
  SECTION 3.09

  	
  Material
  Agreements

  	
  49

  
	
  SECTION 3.10

  	
  [RESERVED]

  	
  49

  
	
  SECTION 3.11

  	
  Investment
  Company Act

  	
  49

  
	
  SECTION 3.12

  	
  Use of
  Proceeds

  	
  49

  
	
  SECTION 3.13

  	
  Taxes

  	
  49

  
	
  SECTION 3.14

  	
  Accuracy
  of Information

  	
  49

  
	
  SECTION 3.15

  	
  No
  Undisclosed Dividend Restrictions

  	
  50

  
	
  SECTION 3.16

  	
  No Default

  	
  50

  
	
   

  	
   

  
	
  ARTICLE IV CONDITIONS

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01

  	
  Conditions
  Precedent to Effectiveness

  	
  50

  
	
  SECTION 4.02

  	
  All
  Borrowings

  	
  52

  
	
   

  	
   

  
	
  ARTICLE V AFFIRMATIVE COVENANTS

  	
  52

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01

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

  	
  52

  
	
  SECTION 5.02

  	
  Insurance

  	
  53

  
	
  SECTION 5.03

  	
  Compliance
  with Laws and Payment of Material Obligations and Taxes

  	
  53

  
	
  SECTION 5.04

  	
  Financial
  Statements, Reports, etc.

  	
  54

  
	
  SECTION 5.05

  	
  Notices of
  Material Events

  	
  56

  
	
  SECTION 5.06

  	
  Books and Records;
  Access to Properties and Inspections

  	
  56

  
	
  SECTION 5.07

  	
  Use of
  Proceeds

  	
  56

  
	
  SECTION 5.08

  	
  Existing
  JCIL Share Charge

  	
  56

  
	
   

  	
   

  
	
  ARTICLE VI NEGATIVE COVENANTS

  	
  56

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
  Indebtedness
  of Subsidiaries

  	
  56

  
	
  SECTION 6.02

  	
  Liens

  	
  57

  
	
  SECTION 6.03

  	
  Sale and
  Lease-Back Transactions

  	
  60

  
	
  SECTION 6.04

  	
  Mergers,
  Consolidations and Transfers of Assets

  	
  60

  
	
  SECTION 6.05

  	
  Transactions
  with Affiliates

  	
  61

  
	
  SECTION 6.06

  	
  Restrictive
  Agreements

  	
  62

  
	
  SECTION 6.07

  	
  Certain
  Financial Covenants

  	
  62

  
	
  SECTION 6.08

  	
  Margin
  Stock

  	
  62

  
	
  SECTION 6.09

  	
  Investments,
  Loans, Advances and Guarantees

  	
  63

  
	
  SECTION 6.10

  	
  Restricted
  Payments; Certain Payments of Indebtedness

  	
  65

  
	
  SECTION 6.11

  	
  Limitations
  on Conduct of Business

  	
  67

  
	
  SECTION 6.12

  	
  Concerning
  Janus Capital International Limited

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII EVENTS OF DEFAULT

  	
  68

  
	
   

  	
   

  
	
  ARTICLE VIII THE AGENT

  	
  70

  



 


ii

















 


	
  ARTICLE IX MISCELLANEOUS

  	
  73

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01

  	
  Notices

  	
  73

  
	
  SECTION 9.02

  	
  Survival
  of Agreement

  	
  74

  
	
  SECTION 9.03

  	
  Effectiveness

  	
  74

  
	
  SECTION 9.04

  	
  Successors
  and Assigns

  	
  74

  
	
  SECTION 9.05

  	
  Expenses;
  Indemnity

  	
  76

  
	
  SECTION 9.06

  	
  Right of
  Setoff

  	
  78

  
	
  SECTION 9.07

  	
  Applicable
  Law

  	
  78

  
	
  SECTION 9.08

  	
  Waivers;
  Amendment

  	
  78

  
	
  SECTION 9.09

  	
  Interest
  Rate Limitation

  	
  79

  
	
  SECTION 9.10

  	
  Entire
  Agreement

  	
  79

  
	
  SECTION 9.11

  	
  WAIVER OF
  JURY TRIAL

  	
  79

  
	
  SECTION 9.12

  	
  Severability

  	
  80

  
	
  SECTION 9.13

  	
  Counterparts

  	
  80

  
	
  SECTION 9.14

  	
  Headings

  	
  80

  
	
  SECTION 9.15

  	
  Jurisdiction;
  Consent to Service of Process

  	
  80

  
	
  SECTION 9.16

  	
  Confidentiality;
  Material Non-Public Information

  	
  81

  
	
  SECTION 9.17

  	
  Electronic
  Communications

  	
  82

  
	
  SECTION 9.18

  	
  Patriot
  Act

  	
  83

  
	
  SECTION 9.19

  	
  No
  Fiduciary Relationship

  	
  83

  
	
   

  	
   

  	
   

  
	
  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 LLC Guarantee

  	
   

  
	
  Exhibit E

  	
  Form of Maturity Date
  Extension Request

  	
   

  
					



 


iii
















 


364-DAY
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT dated as of October
4, 2010 (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; and JPMORGAN
CHASE BANK, N.A., as the Administrative Agent.


 


The
parties hereto hereby agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


SECTION 1.01                                            Defined Terms.  As used in this Agreement, the following
terms shall have the meanings specified below:


 


“ABR
Borrowing” shall mean a Borrowing comprised of ABR Loans.


 


“ABR
Loan” shall mean any Standby Loan or Swingline 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
Agent” shall mean JPMorgan Chase Bank, N.A., in its capacity as
administrative agent under the Loan Documents, and its successors in such
capacity as provided in Article VIII.


 


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


 


“Administrative
Questionnaire” shall mean an Administrative Questionnaire in a form
supplied by the Administrative Agent.


 


“Affected
Subsidiary” shall have the meaning assigned to such term in Section
6.04(c).


 


“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.


 


[Signature Page to the
364-Day Competitive Advance and Revolving Credit Facility Agreement]


 

















 


“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 commencing two Business
Days thereafter plus 1.00%.  If
for any reason the Administrative 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 Administrative 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.


 


“Applicable
Rate” shall mean, for any day on or after the Closing 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:


 


	
  Index Debt Ratings

  	
   

  	
  ABR Spread

  	
   

  	
  Eurodollar

  Standby Spread

  	
   

  	
  Commitment

  Fee Rate

  	
   

  
	
  Category 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB+/Baa1 or higher

  	
   

  	
  1.250

  	
  %

  	
  2.250

  	
  %

  	
  0.300

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 2

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB/Baa2

  	
   

  	
  1.500

  	
  %

  	
  2.500

  	
  %

  	
  0.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB-/Baa3

  	
   

  	
  1.750

  	
  %

  	
  2.750

  	
  %

  	
  0.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 4

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BB+/Ba1

  	
   

  	
  2.000

  	
  %

  	
  3.000

  	
  %

  	
  0.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 5

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lower than BB+/Ba1 or unrated

  	
   

  	
  2.250

  	
  %

  	
  3.250

  	
  %

  	
  0.750

  	
  %

  



 


For
purposes of the foregoing, (a) if either Moody’s or S&P shall not have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last 


 


2

















 


sentence of this definition), then
such rating agency shall be deemed to have established a rating in Category 5;
(ii) if the ratings established or deemed to have been established by Moody’s
and S&P for the Index Debt shall fall within different Categories, the Applicable
Rate shall be based on 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; and (iii) 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
Administrative Agent and the Lenders. Each change in the Applicable Rate shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of Moody’s or S&P shall change, or if either
such rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating of the other rating agency (or, if the circumstances
referred to in this sentence shall affect both rating agencies, the ratings
most recently in effect prior to such changes or cessations).


 


“Arrangers”
shall mean J.P. Morgan Securities LLC and Banc of America Securities LLC.


 


“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 Administrative Agent and the Borrower.


 


“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.


 


“Bankruptcy
Event” shall mean, with respect to any Person, such Person becomes the
subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee, administrator, custodian, assignee for the benefit of
creditors or similar Person charged with the reorganization or liquidation of
its business appointed for it, or, in the good faith determination of the
Administrative Agent, has taken any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any such proceeding or
appointment; provided that a Bankruptcy Event shall not result solely by
virtue of any ownership interest, or the acquisition of any ownership interest,
in such Person by a Governmental Authority or instrumentality thereof; provided,
further, that such ownership interest does not result in or provide such
Person with 


 


3

















 


immunity from the jurisdiction of
courts within the United States or from the enforcement of judgments or writs
of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any
contracts or agreements made by such Person.


 


“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 April 27, 2010 and the Janus Selection prospectus dated June 9, 2010, 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, (b) a Competitive Borrowing or a (c)
Swingline 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 Person
prepared in accordance with GAAP, and the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.


 


“CERCLA”
shall mean the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986.


 


A “Change
in Control” shall be deemed to have occurred if, 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 Closing Date or (ii)
individuals whose election, or nomination for election by the Borrower’s
stockholders, was approved by a vote of at least a 


 


4

















 


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.


 


“Closing
Date” shall mean the date on which the conditions precedent set forth in
Section 4.01 shall have been satisfied or waived in accordance with the terms
herein, which date is October 4, 2010.


 


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


 


“Commitment”
shall mean, with respect to each Lender, the commitment of such Lender to make
Standby Loans and to acquire participations in Swingline Loans hereunder (and
with respect to the Swingline Lender, to make the Swingline Loans hereunder),
expressed as an amount representing the maximum aggregate amount of such Lender’s
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.12 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section
9.04.  The initial amount of each Lender’s
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Commitment, as applicable.
As of the Closing Date, the aggregate amount of the Lenders’ Commitments is
$100,000,000.


 


“Commitment
Fee” shall have the meaning assigned to such term in Section 2.07(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.


 


5

















 


“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 September 2010.


 


“Consenting
Lender” shall have the meaning assigned to such term in Section 2.13.


 


“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 (currently known as VFNC Trust) in an
aggregate amount for all periods not in excess of $33,000,000, (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 Stanfield Victoria
Funding LLC (currently known as VFNC Trust) in an aggregate amount for all
periods not in excess of $38,000,000, 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 (currently known as VFNC Trust) 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 


 


6

















 


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)
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 mutual fund unit awards, and (e)(i) non-cash extraordinary losses,
(ii) cash charges relating to severance expense, (iii) unrealized gains or
losses in net investments in seed financing for early stage funds or portfolios
or (iv) 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.


 


“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.


 


“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.


 


“Credit
Party” means the Administrative Agent, the Swingline Lender or any other
Lender.


 


7

















 


“Declining
Lender” shall have the meaning assigned to such term in Section 2.13.


 


“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 such Indebtedness otherwise meets, with respect to such Original
Indebtedness, the requirements set forth in the definition of the term “Replacement
Indebtedness”; 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 60 days following the date of the
incurrence thereof; and provided, further, that (i) no Loans
shall be outstanding while both the Original Indebtedness and Delayed Application
Replacement Indebtedness are outstanding, (ii) irrevocable notice in respect of
such refinancing or replacement of the Original Indebtedness is given within
two Business Days of the incurrence of such Delayed Application Replacement
Indebtedness and (iii) proceeds received from such Delayed Application
Replacement Indebtedness shall be paid over to the trustee for the Original
Indebtedness or deposited in a segregated account maintained solely for such
proceeds.


 


“Defaulting
Lender” means any Lender that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans,
(ii) fund any portion of its participations in Swingline Loans or (iii) pay
over to any Credit Party any other amount required to be paid by it hereunder,
unless, in the case of clause (i) above, such Lender notifies the
Administrative Agent in writing that such failure is the result of such Lender’s
good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been
satisfied, (b) has notified the Borrower or any Credit Party in writing, or has
made a public statement to the effect, that it does not intend or expect to
comply with any of its funding obligations under this Agreement (unless such
writing or public statement indicates that such position is based on such
Lender’s good faith determination that a condition precedent (specifically
identified and including the particular default, if any) to funding a Loan
under this Agreement cannot be satisfied) or generally under other agreements
in which it commits to extend credit, (c) has failed, within three Business
Days after request by a Credit Party, acting in good faith, to provide a
certification in writing from an authorized officer of such Lender that it will
comply with its obligations (and is financially able to meet such obligations)
to fund prospective Loans and participations in then outstanding Swingline
Loans under this Agreement, provided that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt
of such certification in form and substance satisfactory to it and the
Administrative Agent, or (d) has become (or the Parent of such Lender has become)
the subject of a Bankruptcy Event.


 


“Disclosed
Matter” shall mean the existence or occurrence of any matter which has been
disclosed in (a) the Borrower’s report on Form 10-K for the fiscal year ended
December 31, 2009 filed with the Securities and Exchange Commission on February
24, 2010, (b) any other filing made with the Securities and Exchange Commission
after February 24, 2010 and prior to the Closing Date, or (c) the Confidential
Memorandum.


 


8

















 


“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;


 


(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 Obligations under the Loan Documents 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 Administrative Agent, (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 that
the Borrower shall be deemed to have consented to any such assignment unless it
shall object thereto by written notice to the Administrative Agent within ten
Business Days after having received notice thereof and (iii) in the case of an
assignment of all or a portion of a Commitment or any Lender’s obligations in
respect of its Swingline Exposure, the Swingline Lender; 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 


 


9

















 


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.


 


“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.


 


“Excess
Margin Stock” shall mean Margin Stock owned by the Borrower and the
Subsidiaries at any time to the extent that the aggregate Margin Stock so owned
at such time has a value of more than 25% of the Consolidated Total Assets.


 


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


 


“Excluded
Securities Account” shall mean one or more deposit or securities accounts
maintained by either Loan Party with any bank or 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 deposit or securities accounts shall not at any time exceed
$75,000,000.


 


“Excluded
Subsidiary” shall mean Janus Capital Trust Manager Limited; provided
that 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


 


10
















 


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:


 


(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 2.21(f);
and


 


(c)                                  U.S. Federal Taxes resulting from any law in effect (including FATCA)
at the time (and, in the case of FATCA, including any regulations or official
interpretations thereof issued after) such Recipient (other than an assignee
under Section 2.22) becomes a party hereto or designates a new lending
office (except to the extent that, pursuant to Section 2.21(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 mean the 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 the
Borrower, the lenders party thereto, Citibank, N.A., as administrative agent
for the lenders and as swingline lender, and JPMorgan Chase Bank, N.A., as
syndication agent.


 


“Existing JCIL Share Charge”
shall mean the Security Over Shares Agreement dated as of June 12, 2009
between Janus International Holding LLC, as the grantor, in favor of Citibank,
N.A., as the agent, in connection with the Existing Credit Agreement.


 


“Existing Maturity Date”
shall have the meaning assigned to such term in Section 2.13.


 


“FATCA” shall mean Sections
1471 through 1474 of the Code, as of the date of 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 


 


11

















 


1%) of the quotations for such day
for such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.


 


“Fee Letter” shall mean the
letter agreement dated September 9, 2010 among the Borrower, the
Administrative Agent and J.P. Morgan Securities LLC.


 


“Fees” shall mean the
Commitment Fee and the Administrative 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.


 


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


 


“Funding Office” shall mean
the office of the Administrative Agent specified in Section 9.01 or such
other office as may be specified from time to time by the Administrative Agent
as its funding office by written notice to the Borrower and the Lenders.


 


“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 


 


12

















 


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 other obligation of the primary obligor; provided that the term “Guarantee”
shall not include (x) endorsements for collection or deposit or
contractual indemnities in the ordinary course of business or (y) indemnification
by any Person of its directors or officers (or of the directors or officers of
such Person’s Subsidiaries) for actions taken on behalf of such Person (or such
Subsidiaries, as applicable).  The amount
of any Guarantee of any guarantor shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation of
the primary obligor in respect of which such Guarantee is made, (b) the
maximum amount for which such guarantor may be liable pursuant to the terms of
the instrument embodying such Guarantee, and (c) such guarantor’s maximum
reasonably anticipated liability in respect thereof as determined by such
Person in good faith.


 


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


 


“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 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 


 


13

















 


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 Stock is 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.


 


“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).


 


“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 2.06(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’ 


 


14

















 


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 months thereafter, as the
Borrower may elect, (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 and (c) as to any Swingline Borrowing,
the period commencing on the date of such Swingline Loan and ending on the
earlier of the Maturity Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least five
Business Days after such Swingline Loan is made; provided that on each
date that a Standby Loan is borrowed, the Borrower shall repay all Swingline
Loans then outstanding.  Notwithstanding
the foregoing, (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 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 


 


15

















 


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.


 


“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.


 


“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.


 


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


 


“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.  Unless the context
clearly indicates otherwise, the term “Lenders” shall include the Swingline
Lender.


 


“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 Administrative 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 


 


16

















 


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.


 


“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 security agreement to provide 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 the Closing Date between the Guarantor and
the Administrative Agent, substantially in the form of Exhibit D.


 


“Loan” shall mean a
Competitive Loan, a Standby Loan or a Swingline Loan, whether made as a
Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, each as permitted hereby.


 


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


 


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


 


“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, 2009 (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, operations,
property or financial condition of the Borrower and the Subsidiaries, taken 


 


17

















 


as a whole, (b) the ability of
either Loan Party to perform its obligations under any Loan Document to which
it is a party or (c) the rights or remedies available to the Lenders under
any Loan Document; provided that, for purposes of clause (a) above,
no Disclosed Matter will constitute a Material Adverse Effect.


 


“Material Indebtedness” shall
mean (i) Indebtedness (other than Indebtedness under the Loan Documents)
in an aggregate principal amount of $25,000,000 or more or (ii) 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 October 3,
2011, or if the Required Lenders shall have agreed pursuant to Section 2.13
to a Maturity Date Extension Request, then, as to the Consenting Lenders, the
date that is 364 days thereafter.


 


“Maturity Date Extension Request”
shall mean a request by the Borrower, substantially in the form of Exhibit E
hereto or such other form as shall be approved by the Administrative Agent, for
the extension of the Maturity Date pursuant to Section 2.13.


 


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


 


“Minimum AUM” shall mean
$100,000,000,000.


 


“Minimum Ownership Percentage”
shall have the meaning assigned to such term in Section 5.01(c).


 


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


 


“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 


 


18

















 


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 2.21(f).


 


“Non-Consenting Lender” shall
have the meaning assigned to such term in Section 2.22.


 


“Obligations” shall mean the
unpaid principal of and interest on (including interest accruing after the
maturity of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of the Borrower to the Administrative Agent or to
any Lender, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under or out
of this Agreement or any other Loan Document, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise.


 


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


 


“Parent” shall mean, with
respect to any Lender, any Person as to which such Lender is, directly or
indirectly, a subsidiary.


 


“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.


 


“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 Administrative 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.


 


19

















 


“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 Administrative 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 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 a year 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 a year 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)                                  securities with maturities of six months or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (c) above;


 


(f)                                    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


 


(g)                                 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


 


20
















 


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 Administrative
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
Administrative 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 time; provided that in
the case that a Defaulting Lender shall exist, “Pro Rata Percentage” shall mean
the percentage of the Total Commitment (disregarding any Defaulting Lender’s
Commitment) represented by such Lender’s Commitment at such 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
and to any Lender’s status as a Defaulting Lender (whose Commitment shall be
disregarded) at the time of determination.


 


“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 Administrative Agent or any Lender or (b) the beneficial owner of any
Person described in clause (a).


 


“Reference Banks” shall mean
JPMorgan Chase Bank, N.A. and Bank of America, 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.


 


21

















 


“Regulation U” shall mean
Regulation U of the Board as from time to time in effect and all official rulings
and interpretations thereunder or thereof.


 


“Regulation X” shall mean
Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.


 


“Related 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.


 


“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 (or would not have been required to guarantee such Original
Indebtedness pursuant to the terms thereof); (c) if such Original
Indebtedness shall have been subordinated to the Obligations, such Replacement
Indebtedness shall be subordinated to the Obligations on terms (taken as a
whole) not less favorable to the Lenders; (d) such Replacement
Indebtedness shall not have a shorter maturity than the Original Indebtedness
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, change of control events, or
assets sales) before the maturity of such Original Indebtedness; (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 so refunded, refinanced or replaced; 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 Indebtedness pursuant to the terms thereof).


 


“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 


 


22

















 


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.


 


“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 plus the
aggregate amount at such time of such Lender’s Swingline Exposure.


 


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


 


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


 


“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 Administrative Agent is subject for
Eurocurrency Liabilities (as defined in 


 


23

















 


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. For the avoidance of doubt, it
is understood and agreed that term “Subsidiary” for purposes of the Loan
Documents shall not include entities registered as “investment companies” under
the Investment Company Act of 1940, as amended, to which the Borrower or its
Subsidiaries provide services.


 


“Swingline Borrowing” shall
mean a borrowing consisting of a Swingline Loan.


 


“Swingline Exposure” shall
mean, at any time, the aggregate principal amount of all Swingline Loans
outstanding at such time.  The Swingline
Exposure of any Lender at any time shall equal its Pro Rata Percentage of the
aggregate Swingline Exposure at such time.


 


“Swingline Lender” shall mean
JPMorgan Chase Bank, N.A., in its capacity as lender of Swingline Loans hereunder.


 


“Swingline Loan” shall mean a
Loan made pursuant to Section 2.05.


 


“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 


 


24

















 


determined. For purposes hereof, “Rate”
shall mean the Adjusted LIBO Rate, the LIBO Rate, the Alternate Base Rate or
the Fixed Rate, as applicable.


 


“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 either Loan Party and the Administrative 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 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 Closing Date.


 


25

















 


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
Closing 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, 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.


 


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 Total Commitment 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 such 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 


 


26

















 


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 (i) in the case of any failure by such
branch or Affiliate to make such Loan, shall not relieve such Lender of its
obligation to the Borrower hereunder and (ii) 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 Administrative 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 a Fixed Rate Loan, by wire transfer of immediately
available funds to the Administrative Agent in New York, New York, not later
than 3:00 p.m., New York City time, on such date, and the Administrative
Agent shall promptly credit the amounts so received to the general deposit
account of the Borrower with the Administrative 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 Administrative Agent shall
have received notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender’s
portion of such Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with this paragraph (c), and the Administrative 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 Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative 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 Administrative 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 Administrative 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, e-mail or fax to the Administrative
Agent a duly completed and executed Competitive Bid Request, to be received by
the Administrative 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 


 


27

















 


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 Total Commitment at the time. A
Competitive Bid Request that does not conform substantially to the format of Exhibit A-1
may be rejected by the Administrative Agent in its sole discretion, and the
Administrative Agent shall promptly notify the Borrower of any such rejection
in writing. 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 a Competitive Bid Request that is not
rejected as aforesaid, the Administrative 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 substantially in the form of Exhibit A-3 and must be
received by the Administrative Agent (by hand delivery, e-mail 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 Administrative Agent.
Competitive Bids that do not conform substantially to the format of Exhibit A-3
may be rejected by the Administrative Agent after conferring with, and upon the
instruction of, the Borrower, and the Administrative 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 Administrative 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 Administrative 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 Administrative Agent by telephone, confirmed in
writing by hand delivery, e-mail or fax of a 


 


28

















 


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 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 Total Commitment 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
Administrative 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 Administrative 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 Administrative Agent pursuant to paragraph (b) above.


 


29

















 


(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, e-mail or fax to the Administrative Agent a duly
completed 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 Administrative 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               Swingline
Loans. (a) Subject to the
terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time on and after the date hereof
and until the earlier of the Maturity Date and the termination of the
Commitments in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of all outstanding
Swingline Loans exceeding $30,000,000 or (ii) the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans exceeding the Total Commitment then in
effect.  Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
repay and reborrow Swingline Loans. 
Swingline Loans shall be ABR Loans.


 


(b)           Whenever the Borrower desires that the Swingline Lender make Swingline
Loans it shall give the Swingline Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swingline Lender not later than 1:00 P.M., New York City time, on the
proposed borrowing date), specifying (i) the amount of the Swingline Loan
to be borrowed and (ii) the requested borrowing date (which shall be a
Business Day prior to the Maturity Date). 
Not later than 3:00 P.M., New York City time, on the borrowing date
specified in a notice in respect of Swingline Loans, the Swingline Lender shall
make available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the amount of the Swingline Loan to be
made by the Swingline Lender.  The
Administrative Agent shall make the proceeds of such Swingline Loan available
to the Borrower on such borrowing date by depositing such proceeds in the
account of the Borrower with the Administrative Agent on such borrowing date in
immediately available funds.


 


(c)           The Swingline Lender, at any time and from time to time in its sole and
absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs
the Swingline Lender to act on its behalf), on one Business Day’s notice given
by the Swingline


 


30
















 


Lender no later than 12:00
Noon, New York City time, request each Lender to make, and each Lender hereby
agrees to make, a Standby Loan, in an amount equal to such Lender’s Pro Rata
Percentage of the aggregate amount of the Swingline Loans (the “Refunded Swingline
Loans”) outstanding on the date of such notice, to repay the Swingline
Lender.  Each Lender hereby absolutely
and unconditionally agrees, upon receipt of notice as provided above, to pay to
the Administrative Agent, for the account of the Swingline Lender, such Lender’s
Pro Rata Percentage of such Swingline Loan or Loans.  Each Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.02(c) with respect to Loans made
by such Lender (and Section 2.02(c) shall apply, mutatis mutandis, to
the payment obligations of the Lenders). 
The Standby Loans so received by the Administrative Agent shall be
immediately made available by it to the Swingline Lender for application by the
Swingline Lender to the repayment of the Refunded Swingline Loans.


 


(d)           If
prior to the time a Standby Loan would have otherwise been made pursuant to Section 2.05(c),
one of the events described in clauses (g) or (h) of Article VII
shall have occurred and be continuing with respect to the Borrower or if for
any other reason, as determined by the Swingline Lender in its sole discretion,
Standby Loans may not be made as contemplated by Section 2.05(c), each
Lender shall, on the date such Standby Loan was to have been made pursuant to
the notice referred to in Section 2.05(c), purchase for cash an undivided
participating interest in the then outstanding Swingline Loans by paying to the
Swingline Lender an amount (the “Swingline Participation Amount”) equal
to (i) such Lender’s Pro Rata Percentage times (ii) the sum of
the aggregate principal amount of Swingline Loans then outstanding that were to
have been repaid with such Standby Loans.


 


(e)           Whenever,
at any time after the Swingline Lender has received from any Lender such Lender’s
Swingline Participation Amount, the Swingline Lender receives any payment on
account of the Swingline Loans, the Swingline Lender will distribute to such
Lender its Swingline Participation Amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender’s
participating interest was outstanding and funded and, in the case of principal
and interest payments, to reflect such Lender’s pro  rata portion
of such payment if such payment is not sufficient to pay the principal of and
interest on all Swingline Loans then due); provided, however,
that in the event that such payment received by the Swingline Lender is
required to be returned, such Lender will return to the Swingline Lender any
portion thereof previously distributed to it by the Swingline Lender.


 


(f)            Each
Lender’s obligation to make the Loans referred to in Section 2.05(c) and
to purchase participating interests pursuant to Section 2.05(d) shall
be absolute and unconditional and shall not be affected by any circumstance,
including (i) any setoff, counterclaim, recoupment, defense or other right
that such Lender or the Borrower may have against the Swingline Lender, the
Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to
satisfy any of the other conditions specified in Article IV, (iii) any
adverse change in the condition (financial or otherwise) of the Borrower, (iv) any
breach of this Agreement or any other Loan Document by the Borrower, the
Guarantor or any other Lender or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.


 


31

















 


SECTION 2.06               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 or Swingline Borrowings, which may not be
converted or continued.


 


(b)           To
make an election pursuant to this Section, the Borrower shall notify the
Administrative 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 Administrative
Agent of a written Interest Election Request in a form approved by the
Administrative 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);


 


(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.


 


32

















 


(d)           Promptly
following receipt of an Interest Election Request, the Administrative 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 Administrative 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 2.07               Fees.  (a)  The
Borrower agrees to pay to the Administrative 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 Closing 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 Closing 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 (excluding its
Swingline Exposure) and (ii) the outstanding Competitive Loans of any
Lender shall be disregarded.


 


(b)           The
Borrower agrees to pay the Administrative Agent, for its own account, the fees
(the “Administrative Agent’s Fees”) at the times and in the amounts
agreed by the Borrower in the Fee Letter.


 


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


 


SECTION 2.08               Repayment
of Loans; Evidence of Debt.  (a)  The Borrower hereby unconditionally
promises to pay (i) on the Maturity Date to the Administrative 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 Administrative Agent for the applicable Lender(s) the then unpaid
principal amount of each Competitive Loan. 
The Borrower shall repay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of the Maturity Date and
the first date after such Swingline Loan is made that is the 15th or last day
of a calendar month and is at least five Business Days after such Swingline
Loan is made.


 


33

















 


(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 Administrative 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 Administrative 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 Administrative 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 Administrative Agent.  Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented
by one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).


 


SECTION 2.09               Interest
on Loans.  (a)  Subject to Section 2.10, the
Loans comprising each Eurodollar Borrowing shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 360 days) at a rate
per annum equal to (i) in the case of each Eurodollar Standby Loan, the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate, and (ii) in the case of each Eurodollar Competitive
Loan, the LIBO Rate for the Interest Period in effect for such Borrowing plus
the Margin offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03.  Accrued
interest on each Eurodollar Loan shall be payable in arrears on each Interest
Payment Date for such Loan.  Each
Reference Bank agrees upon the request of the Administrative Agent to furnish
to the Administrative 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 Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such interest rate on
the basis of timely information furnished by the remaining Reference Banks, and
such determination shall be conclusive absent manifest error.


 


(b)           Subject
to Section 2.10, the Loans comprising each ABR Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as the case may be) at a rate per annum equal to the
Alternate Base Rate 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 Administrative Agent, and such determination shall be conclusive absent
manifest error.


 


34

















 


(c)           Subject
to Section 2.10, each Fixed Rate Loan shall bear interest at a rate per
annum (computed on the basis of the actual number of days 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 2.10               Default
Interest.  Notwithstanding anything to the contrary
herein, (a) upon the occurrence and during the continuance of an Event of
Default under clause (b) of Article VII with respect to any Loan, the
Borrower shall pay interest on the overdue principal amount of such Loan,
payable in arrears on the dates referred to in Section 2.09, at a rate per
annum (computed on the basis of the actual number of days elapsed over a year
of 360 days) equal at all times to 2% per annum above the rate per annum
required to be paid on such Standby Loan and such Swingline Loan pursuant to Section 2.09(a) or
(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 2.09(b).


 


SECTION 2.11               Alternate
Rate of Interest.  In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any Interest Period for
a Eurodollar Borrowing the Administrative 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
Administrative Agent shall, as soon as practicable thereafter, give written or
fax notice of such determination to the Borrower and the Lenders.  In the event of any such determination, until
the Administrative 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 Administrative 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 2.09(b) pending
the execution by the Borrower and each Lender of a written agreement providing
for a different interest rate. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error.


 


SECTION 2.12               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
Administrative Agent, the Borrower may at any time in whole permanently
terminate, or 


 


35

















 


from time to time in part
permanently reduce, without penalty but subject to Section 2.17, 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 2.14, 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 Total Commitment.


 


(c)           Each
reduction in the Total Commitment under this Section 2.12 shall be made
ratably among the Lenders in accordance with their respective Commitments. The
Borrower shall pay to the Administrative Agent for the account of the Lenders,
on the date of each termination or reduction of the Total Commitment under this
Section 2.12, the Commitment Fees on the amount of the Commitments so
terminated or reduced accrued through the date of such termination or
reduction.


 


SECTION 2.13               Extension
of Maturity Date.  Notwithstanding anything contained herein to
the contrary, the Borrower may, by delivery of a Maturity Date Extension
Request to the Administrative Agent (which shall promptly deliver a copy to
each of the Lenders) not less than 30 days (or such shorter period as the
Administrative Agent may consent to) and not more than 60 days prior to the
anniversary of the Closing Date, request that the Lenders extend the Maturity
Date for an additional period of 364 days. 
Each Lender shall, by notice to the Borrower and the Administrative
Agent given not later than the 20th day (or such later date as the Borrower and
the Administrative Agent may consent to) after the date of the Administrative
Agent’s receipt of the Borrower’s Maturity Date Extension Request, advise the
Borrower whether or not it agrees to the requested extension (each Lender
agreeing to a requested extension being called a “Consenting Lender”,
and each Lender declining to agree to a requested extension being called a “Declining
Lender”). Any Lender that has not so advised the Borrower and the
Administrative Agent by such day shall be deemed to have declined to agree to
such extension and shall be a Declining Lender. 
Notwithstanding anything contained herein to the contrary, so long as
Lenders constituting the Required Lenders shall have agreed to a Maturity Date
Extension Request, then the Maturity Date shall, as to the Consenting Lenders,
be extended to the date that is 364 days after the Maturity Date theretofore in
effect.  The decision to agree or withhold
agreement to any Maturity Date Extension Request shall be at the sole
discretion of each Lender.  The
Commitment of any Declining Lender shall terminate on the Maturity Date in
effect prior to giving effect to any such extension (such Maturity Date being
called the “Existing Maturity Date”). 
The principal amount of any outstanding Loans made by Declining Lenders,
together with any accrued interest thereon and any accrued fees and other
amounts payable to or for the account of such Declining Lenders hereunder,
shall be due and payable on the Existing Maturity Date, and on the Existing
Maturity Date the Borrowers shall also make such other prepayments of their
Loans pursuant to Section 2.14 as shall be required in order that, after
giving effect to the termination of the Commitments of, and all payments to,
Declining Lenders pursuant to this sentence, the sum of the Revolving Credit
Exposures plus the aggregate outstanding principal amount of the
Competitive Loans would not exceed the Total Commitment.  Notwithstanding the foregoing provisions of
this paragraph, the Borrower shall have the right, pursuant to Section 2.22,
at any time prior to the Existing Maturity Date, to replace a Declining Lender
with a Lender or other financial institution that will agree to the applicable
Maturity Date Extension Request, and any 


 


36

















 


such
replacement Lender shall for all purposes constitute a Consenting Lender.  Notwithstanding the foregoing, no extension
of the Existing Maturity Date pursuant to this paragraph shall become effective
unless on the Existing Maturity Date the conditions set forth in Section 4.01(e) and
(f) (in each case, to the extent reasonably requested by the
Administrative Agent), and 4.02(b), (c) and (d) shall be satisfied
(with all references in Section 4.02 to a Borrowing being deemed to be
references to such increase/extension) and the Administrative Agent shall have
received a certificate to the effect that the conditions set forth in Section 4.02(b),
(c) and (d) have been satisfied dated such date and executed by a
Financial Officer of the Borrower.


 


SECTION 2.14               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, upon giving written or fax notice (or
telephone notice promptly confirmed by written or fax notice) to the
Administrative 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 except pursuant to clause (b) below.


 


(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 Total Commitment
(including as a result of any reduction in the Total Commitment pursuant to Section 2.12),
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.


 


(c)           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 2.17, 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 2.15               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 


 


37

















 


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 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.


 


38

















 


SECTION 2.16               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 Administrative 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 provided in Section 2.09(b) pending
the execution by the Borrower and such Lender of a written agreement providing
for a different interest rate.


 


(b)           For
purposes of this Section, 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 2.17               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, 2.05 or 2.06, (c) any payment, prepayment or conversion of a
Eurodollar Loan or Fixed Rate Loan required by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day of
the Interest Period applicable thereto (including as a result of the occurrence
of any Event of Default) or (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), including, in each such case, any loss (other than loss of
profits) or reasonable expense sustained or incurred or to be 


 


39

















 


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 2.17 shall not apply with respect to Taxes, other than
Taxes that represent losses or damages arising from any non-Tax claim.


 


SECTION 2.18               Pro
Rata Treatment.  Except as required under Section 2.13, Section 2.16
or Section 2.24, 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 Loans comprising such Borrowing.  Each payment of interest on any Competitive
Borrowing shall be allocated pro rata among the Lenders participating in such
Borrowing in accordance with the respective amounts of accrued and unpaid
interest on their outstanding Competitive Loans comprising such Borrowing.  For purposes of determining the available
Commitments of the Lenders at any time, each outstanding Competitive Borrowing
and each outstanding Swingline Loan shall be deemed to have utilized the Commitments
of the Lenders (including those Lenders which shall not have made Loans as part
of such Competitive Borrowing and those Lenders that shall not have made
Swingline Loans) pro rata in accordance with such respective Commitments,
except as set forth in Section 2.07(a). 
Each Lender agrees that in computing such Lender’s portion of any
Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender’s percentage of such Borrowing to the next higher
or lower whole dollar amount.


 


SECTION 2.19               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 or participations in Swingline Loans as a result of which the unpaid
principal portion of the Standby Loans or participations in Swingline Loans of
such Lender shall be proportionately less than the unpaid principal portion of
the Standby Loans or participations in Swingline Loans of any other Lender, it
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the


 


40
















 


Standby
Loans and participations in Swingline Loans of such other Lender, so that the
aggregate unpaid principal amount of the Standby Loans and participations in
the Standby Loans and participations in Swingline Loans held by each Lender
shall be in the same proportion to the aggregate unpaid principal amount of all
Standby Loans and participations in Swingline Loans then outstanding as the
principal amount of its Standby Loans and Swingline Loans prior to such
exercise of banker’s lien, setoff or counterclaim or other event was to the
principal amount of all Standby Loans and participations in Swingline Loans
outstanding prior to such exercise of banker’s lien, setoff or counterclaim or
other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation pursuant to the foregoing arrangements deemed to
have been so purchased may exercise any and all rights of banker’s lien, setoff
or counterclaim with respect to any and all moneys owing by the Borrower to
such Lender by reason thereof as fully as if such Lender had made a Standby
Loan or Swingline Loan directly to the Borrower in the amount of such
participation.


 


SECTION 2.20               Payments.  (a)  The
Borrower shall make each payment (including principal of or interest on any
Borrowing or any Fees or other amounts but excluding principal and interest on
Swingline Loans, which shall be paid directly to the Swingline Lender except as
provided in Section 2.05(c)) hereunder and under any other Loan Document
not later than prior to 1:00 p.m., New York City time, on the due date
thereof to the Administrative Agent at the Funding Office, in dollars and in
immediately available funds.


 


(b)           Whenever
any payment (including principal of or interest on any Borrowing or any Fees or
other amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.


 


SECTION 2.21               Taxes.  (a)  Each
payment by or on behalf of either 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. To the extent that such Taxes are Indemnified Taxes, then the
amount payable by or on behalf of 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 2.21), 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.


 


41

















 


(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 Administrative
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 Administrative Agent.


 


(d)           The
Loan Parties shall jointly and 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 or on behalf of such Loan Party under any Loan
Document (including amounts payable under this Section 2.21) 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 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 Administrative Agent.


 


(e)           The
Lenders shall severally indemnify the Administrative Agent for the full amount
of any Excluded Taxes payable by the Administrative Agent with respect to any
Loan Document or any payment by or on behalf of either 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 Administrative Agent. 
The indemnity under this paragraph (e) shall be paid within 30 days
after the Administrative Agent delivers to the applicable Lender a certificate
stating the amount of Excluded Taxes so payable by the Administrative
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 Administrative Agent, at the time or times prescribed
by law or reasonably requested by the Borrower or the Administrative Agent,
such properly completed and executed documentation prescribed by law or
reasonably requested by the Borrower or the Administrative 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 Administrative Agent as will
enable the Borrower or the Administrative 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 in
Sections 2.21(f)(ii) and (iii)) 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 Administrative Agent, any Lender shall update any form or
certification previously delivered pursuant to this Section 2.21.  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 


 


42

















 


within 10 days after such
expiration, obsolescence or inaccuracy) notify the Borrower and the
Administrative Agent in writing of such expiration, obsolescence or inaccuracy
and update the form or certificate if it is legally eligible to do so.


 


(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 Administrative Agent (in such number of copies
reasonably requested by the Borrower and the Administrative 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:


 


(A)          in the case of a Lender that
is a U.S. Person, IRS Form W-9 certifying that such Lender is exempt
from U.S. Federal backup withholding tax;


 


(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, or reduction of, 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 (including a participating Lender) 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; provided, however, that if the Lender is a partnership
and one or more of its partners are claiming the exemption for portfolio
interest under Section 881(c) of the Code, such Lender may provide
the certificate described in clause (D)(2) of this paragraph (f)(ii) on
behalf of such partners; or


 


43

















 


(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 Administrative Agent to determine the amount of Tax
(if any) required by law to be withheld.


 


(iii)          If
a payment made to a Lender under any Loan Document would be subject to U.S.
Federal withholding Tax imposed by FATCA if such Lender were to fail to comply
with the applicable reporting requirements of FATCA (including those contained
in Section 1471(b) or 1472(b) of the Code, as applicable), such
Lender shall deliver to the Withholding Agent, at the time or times prescribed
by law and at such time or times reasonably requested by the Withholding Agent,
such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of
the Code) and such additional documentation reasonably requested by the
Withholding Agent as may be necessary for the Withholding Agent to comply with
its obligations under FATCA, to determine that such Lender has complied with
such Lender’s obligations under FATCA or to determine the amount to deduct and
withhold from such payment.  For purposes
of this Section 2.21(f)(iii), FATCA shall include any regulations or
official interpretations thereof.


 


(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 2.21 (including additional amounts paid by either
Loan Party pursuant to this Section 2.21), 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 2.21 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 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 either 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 either
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 2.21 shall survive
termination of the Loan Documents and payment of any obligations thereunder.


 


SECTION 2.22               Termination
or Assignment of Commitments under Certain Circumstances.  In the event that (a) any
Lender shall become a Defaulting Lender, (b) any Lender shall have
delivered a notice or certificate pursuant to Section 2.15 or 2.16, (c) the
Borrower shall be required to make additional payments to any Lender under Section 2.21,
or (d) a Lender shall become a Non-Consenting Lender (as defined below),
the Borrower shall have the right, at its own expense, upon notice to such
Lender and the Administrative Agent, to require 


 


44

















 


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
Administrative 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 Administrative Agent, (iv) in the case of any assignment
resulting from a claim for compensation under Section 2.15 or payments
required to be made pursuant to Section 2.21, such assignment will result
in a reduction of such compensation or payments thereafter and (v) the
Swingline Lender shall have consented in writing to such assignment (which
consent will not be unreasonably withheld). 
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.


 


In the event that (i) the
Borrower or the Administrative Agent has requested the Lenders to consent to a
departure or waiver of any provisions of the Loan Documents or to agree to any
amendment thereto, (ii) the consent, waiver or amendment in question
requires the agreement of all affected Lenders in accordance with the terms of Section 9.08
and (iii) the Required Lenders have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or
amendment shall be deemed a “Non-Consenting Lender.”


 


SECTION 2.23               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 2.15 or to avoid
the unavailability of Eurodollar Loans under Section 2.11 or 2.16, so long
as such designation is not disadvantageous to such Lender.  A good faith certificate of a Lender setting
forth a reasonable basis of computation and allocation of the amount due under Section 2.15
or 2.17 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 2.15, 2.17, 2.21 and 9.05 shall survive the payment of all amounts due
under any Loan Document and the termination of this Agreement.


 


SECTION 2.24               Defaulting
Lenders.  Notwithstanding
any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as
such Lender is a Defaulting Lender:


 


(a)           Commitment Fees shall cease to accrue on the unfunded portion of the
Commitment of such Defaulting Lender pursuant to Section 2.07(a);


 


45

















 


(b)           the Commitment and Revolving Credit Exposure of such Defaulting Lender
shall not be included in determining whether all Lenders or the Required
Lenders have taken or may take any action hereunder (including any consent to
any amendment, waiver or other modification pursuant to Section 9.08); provided
that (i) such Defaulting Lender’s Commitment may not be increased or
extended without its consent and (ii) the principal amount of, or interest
or fees payable on, Loans may not be reduced or excused and the scheduled date
of payment may not be postponed as to such Defaulting Lender without such
Defaulting Lender’s consent;


 


(c)           if any Swingline Exposure exists at the time such Lender becomes a
Defaulting Lender then:


 


(i)            all or any part of the Swingline Exposure of such Defaulting Lender shall
be reallocated among the non-Defaulting Lenders in accordance with their
respective Pro Rata Percentages but only to the extent that the aggregate
amount of each non-Defaulting Lender’s Revolving Credit Exposure does not
exceed its Commitment; and


 


(ii)           if the reallocation described in clause (i) above cannot, or can
only partially, be effected, the Borrower shall within three Business Days
following notice by the Administrative Agent prepay such Swingline Exposure;
and


 


(d)           so long as such Lender is a Defaulting Lender, the Swingline Lender shall
not be required to fund any Swingline Loan unless it is satisfied that the
related exposure will be 100% covered by the Commitments of the non-Defaulting
Lenders, and participating interests in any newly made Swingline Loan shall be
allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and
such Defaulting Lender shall not participate therein).


 


If the Swingline Lender has a good
faith belief that any Lender has defaulted in fulfilling its obligations under
one or more other agreements in which such Lender commits to extend credit, the
Swingline Lender shall not be required to fund any Swingline Loan unless the
Swingline Lender shall have entered into arrangements with the Borrower or such
Lender, satisfactory to the Swingline Lender, to defease any risk to it in
respect of such Lender hereunder.


 


In the
event that the Administrative Agent, the Borrower and the Swingline Lender each
agrees that a Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender, then the Swingline Exposure of the
Lenders shall be readjusted to reflect the inclusion of such Lender’s
Commitment and on such date such Lender shall purchase at par such of the Loans
of the other Lenders (other than Competitive Loans and Swingline Loans) as the
Administrative Agent shall determine may be necessary in order for such Lender
to hold such Standby Loans in accordance with its Pro Rata Percentage.


 


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ARTICLE III


 


REPRESENTATIONS
AND WARRANTIES


 


The Borrower represents and warrants
as to itself and the Subsidiaries (other than the Excluded Subsidiary) 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 have such authority 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 either 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 the
Guarantor, enforceable against the Borrower or the Guarantor in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting the enforcement of creditors’ rights
generally.


 


SECTION 3.03               No
Conflict; Governmental Consent.  None of the Transactions will violate (i) any
law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any Subsidiary or (ii) the Borrower’s or any
Subsidiary’s articles or certificate of incorporation, bylaws or other
organizational documents or (iii) the provisions of any indenture,
instrument or agreement to which the Borrower or any Subsidiary is a party or
is subject, or by which it, or its property, is bound, or conflict therewith or
constitute a default thereunder, or result in the creation or imposition of any
Lien in, of or on the property of the Borrower or any Subsidiary pursuant to
the terms of any such indenture, instrument or agreement. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof (other than those which have been
obtained or waived), is required to authorize, or is required in connection
with the execution, delivery and performance of, or the legality, validity,
binding effect or enforceability of, any of the Loan Documents.


 


SECTION 3.04               Compliance
with Laws; Environmental and Safety Matters.  (a)  The Borrower and each Subsidiary,
to the best knowledge and belief of the Borrower, 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, in each case, except to the extent
that the failure to comply therewith could not, in the aggregate, be reasonably
expected to have a Material Adverse Effect.


 


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(b)           The
Borrower and each Subsidiary has complied in all 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, in each case except to
the extent that the failure to comply therewith could not, in the aggregate or
individually, be reasonably expected to have a Material Adverse Effect.  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 (i) audited 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, 2009, audited by and accompanied by the
opinion of Deloitte & Touche LLP, an independent registered public
accounting firm and (ii) unaudited consolidated balance sheet and
statements of income, changes in stockholders’ equity and cash flows as of and
for the fiscal quarters ended March 31, 2010 and June 30, 2010.  The financial statements referred to in
clauses (i) and (ii) of this Section 3.05 were prepared in
accordance with GAAP and present fairly in all material respects the financial
condition and results of operations of the Borrower and the Consolidated
Subsidiaries as of such date and for such period (in the case of unaudited
financial statements, subject to normal year-end audit adjustments and the
absence of footnotes). Such balance sheet and the notes thereto, if any,
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 or results of
operations of the Borrower and the Consolidated Subsidiaries has occurred since
December 31, 2009.  It is understood
that downgrades or negative pronouncements by rating agencies and volatility in
the capital markets generally shall not in and of themselves be considered
material adverse changes, but that the antecedents or consequences thereof may
constitute such changes (except to the extent the same constitute Disclosed
Matters).


 


SECTION 3.07               Subsidiaries.  Schedule 3.07
contains an accurate list of all the significant joint ventures and all the
Subsidiaries, in each case on and as of the Closing Date, setting forth their
respective jurisdictions of organization and the percentage of their respective
ownership interests held by the Borrower or other Subsidiaries.


 


48

















 


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               [RESERVED].


 


SECTION 3.11               Investment
Company Act.  Neither the Borrower nor any Subsidiary is an
“investment company,” required to register as such under 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 of the
Borrower and its Subsidiaries. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations U and X.


 


SECTION 3.13               Taxes.  The Borrower and
each 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 or in the
case of Tax returns or Taxes (other than Federal Tax returns and Federal taxes)
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect. The charges, accruals and reserves on the books of the Borrower
and the Consolidated Subsidiaries in respect of any Taxes or other governmental
charges are adequate.


 


SECTION 3.14               Accuracy
of Information.  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 the Guarantor to the Administrative 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, forecasts or estimates, if any, that have been
prepared by the Borrower and made available to the Administrative Agent, any
Lender or any potential Lender, the Borrower only represents and warrants that
such financial projections, forecasts or estimates have been prepared in good
faith based upon assumptions believed by the 


 


49

















 


management
of the Borrower to be reasonable at the time of preparation (it being
understood such projections, forecasts and estimates 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, forecasts or
estimates 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 or covenant 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               No
Default.  No Default or Event of Default has occurred
and is continuing.


 


ARTICLE IV


 


CONDITIONS


 


SECTION 4.01               Conditions
Precedent to Effectiveness.  This Agreement shall become effective on the
date on which:


 


(a)           The Administrative Agent shall have received
evidence reasonably satisfactory to it that the Existing Credit Agreement shall
have been (or shall be substantially simultaneously) terminated, that all
amounts due thereunder shall have been (or shall be substantially
simultaneously) paid in accordance with its terms and that no Liens exist other
than Liens permitted by the terms of this Agreement or Liens discharged on or
prior to the Closing Date pursuant to a pay-off letter or other documentation
reasonably satisfactory to the Administrative Agent.


 


(b)           The Administrative Agent (or its counsel)
shall have received either (i) a counterpart of this Agreement and of the
LLC Guarantee signed on behalf of each party thereto (which may include
telecopy or e-mail transmissions of signed signature pages), or (ii) written
evidence reasonably satisfactory to the Agent (which may include telecopy or
e-mail transmissions of signed signature pages) that this Agreement and of the
LLC Guarantee have been signed on behalf of each party thereto.


 


(c)           The Lenders, the Administrative Agent and the
Arrangers shall have received all fees required to be paid, and all expenses
for which invoices have been submitted to the Borrower at least one Business
Day prior to the Closing Date.


 


(d)           The Administrative Agent shall have received (i) audited
consolidated financial statements of the Borrower for the two most recent
fiscal years ended prior to the Closing Date as to which such financial
statements are available and (ii) unaudited interim consolidated financial
statements of the Borrower for each quarterly period ended subsequent


 


50
















 


to the date of the latest financial statements delivered pursuant to
clause (i) of this paragraph as to which such financial statements are
available.


 


(e)                                  The Administrative Agent shall have received a
legal opinion (addressed to the Administrative Agent and each Lender party
hereto on the Closing Date) from Kirkland & Ellis LLP, counsel to the
Borrower, which opinion shall be reasonably satisfactory to the Administrative
Agent. The Administrative Agent shall have received a legal opinion (addressed
to the Administrative Agent and each Lender party hereto on the Closing Date)
from Kelley A. Howes, General Counsel of the Borrower, or Curt Foust, Assistant
General Counsel of the Borrower, which opinion shall be reasonably satisfactory
to the Administrative Agent.


 


(f)                                   The Administrative Agent shall have received
the following documents and certificates, all in form and substance reasonably
satisfactory to the Administrative Agent:


 


(i)                                     A certificate
of the Chief Financial Officer of the Borrower, dated the Closing Date,
certifying (A) compliance with the condition precedent set forth in
paragraph (b) of Section 4.02, and (B) the dollar amount of
Long-Term Assets Under Management as of the close of business on the Business
Day immediately preceding the Closing Date and for the 30 Business Days prior
thereto;


 


(ii)                                  A copy of the
certificate or articles of incorporation or organization or certificates of
formation, including all amendments thereto, of each Loan Party, certified, if
applicable, as of a recent date by the Secretary of State of the state of its
organization, and a certificate as to the good standing of each Loan Party as
of a recent date, from such Secretary of State or similar Governmental
Authority; and


 


(iii)                               A certificate
of the Secretary or Assistant Secretary of each Loan Party, dated the Closing
Date, certifying (A) that attached thereto is a true and complete copy of
the by-laws or operating (or limited liability company) agreement of such Loan
Party as in effect on the Closing Date, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by the board of directors
(or equivalent governing body) of such Loan Party authorizing the Loan
Documents to which it is a party and the transactions contemplated thereby,
including, in the case of the Borrower, the Borrowings hereunder, (C) that
the certificate or articles of incorporation or organization of such Loan Party
have not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to subclause (ii) above,
and (D) as to the incumbency and specimen signature of each officer
executing any Loan Document on behalf of such Loan Party and countersigned by
another officer as to the incumbency and specimen signature of the Secretary or
Assistant Secretary executing the certificate delivered pursuant to this
subclause (iii).


 


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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 Administrative Agent (or in the case of a
Swingline Loan, the Swingline Lender and the Administrative Agent) shall have
received a notice of such Borrowing as required by Section 2.03, 2.04 or
2.05, as applicable.


 


(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 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 Total
Commitment.


 


(d)                                 The Borrower shall be in compliance with Section 6.07(c) for
the period of three consecutive Business Days ending immediately prior to 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 2.06.


 


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 (other than contingent
indemnification and expense reimbursement obligations for which no claim has
been made) 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, or other transactions expressly 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 (other than the
Excluded 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 


 


52

















 


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 the
Minimum Ownership Percentage of the outstanding Equity Interests of the
Guarantor, free and clear of any Liens on such Equity Interests, other than
statutory Liens applicable to Equity Interests or Liens arising by operation of
the organizational documents or other equity rights agreements existing as of
the Closing Date, which documents or agreements, if any, shall be disclosed to
the Lenders. As used herein, “Minimum Ownership Percentage” shall mean
95% of the outstanding Equity Interests of the Guarantor minus the percentage of
such outstanding Equity Interests represented by Equity Interests of the
Guarantor awarded from time to time to any officers or employees of the
Borrower or its Subsidiaries under compensation plans of the Borrower and its
Subsidiaries; provided, however, that the aggregate amount of
such awards of Equity Interests of the Guarantor shall not total more than 5%
of the outstanding Equity Interests of the Guarantor.


 


(d)                                 The Borrower will, and will cause each Subsidiary (other than the
Excluded Subsidiary) to do all things necessary, in the Borrower’s reasonable
business judgment, to maintain, preserve, protect and keep their properties
material to the conduct of their businesses (taken as a whole) in good repair,
working order and condition, and make all necessary and proper repairs,
renewals and replacements so that their businesses (taken as a whole) carried
on in connection therewith may be properly conducted in all material respects
at all times, except where the failure to do so would not have a Material
Adverse Effect; 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 (through the Administrative Agent) upon reasonable request full
information as to the insurance carried.


 


SECTION 5.03                                      Compliance with Laws and Payment of Material Obligations and Taxes.  (a)  The
Borrower will, and will cause each Subsidiary (other than the Excluded
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 (other than the
Excluded 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 


 


53

















 


adequate reserves have
been set aside or (ii) where any failure to pay could not reasonably be
expected to have a Material Adverse Effect.


 


SECTION 5.04                                      Financial Statements, Reports, etc.  The Borrower will maintain, for itself and
each Subsidiary (other than the Excluded Subsidiary), a system of accounting
established and administered in accordance with GAAP or IFRS, as applicable,
and will furnish to the Administrative Agent and each Lender (through the
Administrative Agent):


 


(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
and (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;


 


(d)                                 as soon as possible and in any event within 10
Business 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 


 


54

















 


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 Business 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)                                 upon a reasonable request of the
Administrative Agent therefor (and, in any event, no later than 12:00 noon, New
York City time, on the second 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 each of the three consecutive Business Days immediately preceding
the date of such request;


 


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


 


(j)                                    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 Administrative 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 Administrative Agent and the Lenders)
or on the SEC’s website on the internet at www.sec.gov and the Borrower has
notified the Administrative 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).


 


55

















 


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 Administrative 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 Subsidiary) to, keep
proper books and account in which full, true and correct entries are made of
all material 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 Administrative 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
Administrative Agent and provide reasonable written 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                                      Existing JCIL Share Charge.  The
Borrower shall make commercially reasonable efforts to cause the release of the
Existing JCIL Share Charge to be registered within three Business Days from the
Closing Date.


 


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 (other than contingent
indemnification and expense reimbursement obligations for which no claim has
been made) 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:


 


(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 


 


56

















 


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 $40,000,000 at any time outstanding;


 


(b)                                 Indebtedness of any Subsidiary to the Borrower
or any other Subsidiary; provided that (i) any such Indebtedness
owing by the Guarantor shall be at least pari  passu to the
Obligations, and (ii) any such Indebtedness of any Subsidiary other than
the Guarantor 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 Closing 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 treasury, depository or
cash management services or in connection with any automated clearing house
transfers of funds;


 


(i)                                     Indebtedness incurred in the ordinary course
of business and arising from agreements or arrangements providing for workers’
compensation claims, self-insurance obligations, performance, bid, surety, stay
and appeal bonds and other similar types of performance and completion
guarantees or as an account party in respect of letters of credit; and


 


(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 $40,000,000 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 


 


57

















 


on its
property (now or hereafter acquired), or on any income or revenues or rights in
respect of any thereof, except:


 


(a)                                 Liens for Taxes 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 or are
immaterial in amount;


 


(b)                                 Liens imposed by law, such as carriers’,
warehousemen’s, materialmen’s, repairmen’s, landlords’ 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;


 


(c)                                  Liens arising out of pledges or deposits under
worker’s compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;


 


(d)                                 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;


 


(e)                                  utility easements, rights-of-way,
restrictions, zoning ordinances, 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;


 


(f)                                   Liens existing on the Closing 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 Closing Date and Replacement
Indebtedness in respect thereof and (ii) extend only to the assets that
they encumbered on the Closing Date (or that would have been required to be so
secured pursuant to the terms thereof) (other than a substitution of like
assets);


 


(g)                                  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;


 


(h)                                 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;


 


(i)                                     Environmental Liens securing clean-up costs or
fines, not in excess of $25,000,000 in aggregate principal amount, excluding
Environmental Liens that are being contested in good faith by appropriate
proceedings and the enforcement of which is stayed;


 


58

















 


(j)                                    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;


 


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


 


(l)                                     any Lien existing on any property before the
acquisition thereof or existing on any property of any Person that becomes a
Subsidiary after the 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;


 


(m)                             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;


 


(n)                                 Liens in respect of Excess Margin Stock;


 


(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 $20,000,000 at
any time outstanding;


 


(p)                                 Liens granted on cash or cash equivalents to
defease Indebtedness of the Borrower or any of its Subsidiaries, provided
that at the time each such Lien is granted, no Loans shall be outstanding;


 


(r)                                    utility and similar deposits made by the
Borrower or its Subsidiaries in the ordinary course of business (consistent
with past practices of such Borrower or Subsidiary);


 


(s)                                   temporary good faith deposits made in
connection with Investments permitted hereunder;


 


(t)                                    temporary Liens in connection with sales, transfers,
leases, assignments or other conveyances or dispositions of securities
permitted under Section 6.04, including (x) Liens on securities
granted or deemed to arise in connection with and as a result of the execution,
delivery or performance of contracts to sell such securities if such sale is
otherwise permitted hereunder, or is required by such contracts to be permitted
hereunder, and (y) rights of first refusal, options or other contractual
rights or obligations to sell, assign or otherwise dispose of any securities or
interest therein, which rights of first refusal, option 


 


59

















 


or contractual rights are granted in connection with a sale, transfer
or other disposition of securities permitted hereunder;


 


(u)                                 licenses, leases or subleases granted to third
parties not interfering in any material respect with the business of any
Subsidiary or the Borrower; and


 


(q)                                 Liens arising from precautionary Uniform
Commercial Code financing statements regarding operating leases or Capital
Leases permitted under this Agreement.


 


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
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 $20,000,000 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, 
consolidate with or liquidate into (or otherwise) the Borrower in a
transaction in which the Borrower is the surviving corporation;


 


(ii)                                  any Subsidiary
(“Affected Subsidiary”) may merge into, consolidate with or liquidate
into (or otherwise) any other Subsidiary (other


 


60
















 


than the Excluded
Subsidiary) in a transaction in which (x) no Person other than (A) the
Borrower, (B) the Guarantor or (C) the parent of the Affected Subsidiary which
parent is a Subsidiary of the Borrower receives any consideration, (y) if
either of the Affected Subsidiary and such other Subsidiary is the Guarantor,
the surviving Subsidiary is the Guarantor or (z) if either of the Affected
Subsidiary and such other Subsidiary 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 (currently known as VFNC Trust)) 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 Closing Date pursuant to this clause (iii), $100,000,000 in the
aggregate; and


 


(iv)                              the Borrower
and the Subsidiaries may sell, transfer, lease, license or otherwise dispose of
(A) Equity Interests in, or assets of, INTECH or Perkins and (B) securities of
Stanfield Victoria Funding LLC (currently known as VFNC Trust);


 


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


 


(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 the Guarantor shall be made in compliance with Sections 6.05 and
6.09;


 


(f)                                    dispositions of non-core assets acquired in
connection with permitted Investments;


 


(g)                                 dispositions of cash and Permitted Investments
in the ordinary course of business;


 


(h)                                 the sale, lease, assignment, transfer or
disposal of Investments in joint ventures required by, or made pursuant to
buy/sell arrangements set forth in joint venture arrangements and similar
binding arrangements; and


 


(i)                                     the Borrower and the Subsidiaries may make any
sales of Excess Margin Stock.


 


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 (other than any
equity issuance or Restricted Payment) with, any of its Affiliates (other than
the Borrower or any Subsidiary (other than the Excluded Subsidiary)), except
that the Borrower or any Subsidiary 


 


61

















 


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.  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 (other than the Excluded 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 or Hedging Agreements permitted hereunder, if such prohibitions or
restrictions apply only to (A) assets other than cash securing such
Indebtedness or Hedging Agreements or (B) cash in an amount not greater than a
customary overcollateralization of the principal amount of such Indebtedness
that has been deposited in a collateral or similar account to cash collateralize
such Indebtedness or Hedging Agreements, (iii) contained in agreements relating
to the sale of a Subsidiary, or a business unit, division, product line or line
of business, 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, (iv) contained in any leases, subleases or licenses, sublicense or
serve contracts restricting the assignment thereof, (v) contained in any
agreement in effect on the Closing Date as any such agreement is in effect on
such date, (vi) provisions in partnership agreements, limited liability company
organizational governance documents, joint venture agreements and other similar
agreements entered into in the ordinary course of business restricting the
transfer of related joint venture interests, (vii) in connection with the
Indebtedness permitted to be incurred by this Agreement so long as such
prohibitions or restrictions are no more restrictive than this Agreement or
(viii) contained in any agreement in effect at the time a Person became a
Subsidiary or assets are first acquired pursuant to a permitted Investment.


 


SECTION 6.07                                            Certain Financial Covenants.  The Borrower will not:


 


(a)                                  permit the Leverage Ratio on any date to
exceed 4.00:1.00;


 


(b)                                 permit the Interest Coverage Ratio to be less
than 3.50:1.00 for any period of four fiscal quarters ending after the Closing
Date; and


 


(c)                                  permit Long-Term Assets Under Management to be
less than or equal to the Minimum AUM, on average, for any consecutive
three-Business Day period.


 


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 


 


62

















 


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 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 Closing Date, no Subsidiary shall acquire any Equity
Interest in the Borrower, (B) such Subsidiary is a Subsidiary prior to the
making of such Investments and (C) the aggregate amount of such Investments by
Loan Parties in Subsidiaries other than the Guarantor (excluding all such
Investments existing on the Closing Date and set forth on Schedule 6.09) shall
not exceed $30,000,000 at any time outstanding; provided  further
that (x) no Investment in any Subsidiary other than the Guarantor 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 current cash
management practices;


 


(iii)                               Investments in
seed financing for early-stage funds in an aggregate amount not to exceed
$250,000,000 (on a cost basis and not including any amount of investments or
co-investments from third parties in the Borrower or its Subsidiaries’ seed
capital program) at any time outstanding;


 


(iv)                              Investments
made with the Net Proceeds from the issuance, after the Closing Date, of common
or preferred stock in the Borrower;


 


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(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 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 the
aggregate consideration paid therefor, together with the aggregate consideration
paid for any other such purchase or acquisition consummated after the Closing
Date in reliance on this clause (viii) (including, in each case, Indebtedness
assumed in connection therewith) shall not exceed $50,000,000;


 


(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 Closing 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) other purchases of Equity Interests in INTECH and/or
Perkins so long as, immediately prior to and after giving effect thereto, 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 


 


64

















 


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);


 


(xi)                                Investments of
customer cash and customer securities;


 


(xii)                             trade
receivables and prepaid expenses, in each case arising in the ordinary course
of business;


 


(xiii)                          Investments for
which the sole consideration provided is Equity Interests of the Borrower;


 


(xiv)                         Investments in
securities received pursuant to any plan of reorganization, restructuring,
workout or similar arrangement or upon the compromise of any debt created in
the ordinary course of business owing to the Borrower or a Subsidiary,
whether through litigation, arbitration or otherwise; and


 


(xv)                            Investments
existing on the Closing Date and set forth on Schedule 6.09.


 


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)                                     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);


 


(ii)                                  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;


 


(iii)                               in addition to
the transactions permitted under Section 6.09(b)(vii) and so long as no Event
of 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 long term incentive plans, stock
option plans or other benefit plans or agreements of the Borrower or any
Subsidiary (the “Company 


 


65

















 


Plans”), including
in connection with the death or disability of any such person; provided
that the aggregate amount of such Restricted Payments made in the form of cash
since the Closing Date in reliance on this clause (iii) shall not exceed
$25,000,000; 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)                                 the Borrower
and the Subsidiaries may make accounting balance reconciliations among
themselves through capital contributions, dividends and loan forgiveness, in
each case in the ordinary course of business and consistent with current cash
management practices;


 


(vi)                              so long as,
after giving effect to each such purchase, redemption, retirement, acquisition,
cancelation or termination, 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, acquisition, cancelation or termination) shall not
exceed 3.00:1.00, the Borrower or any Subsidiary, as the case may be, may make
Restricted Payments on account of 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 (A)
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 Closing
Date, (B) employment agreements with officers of INTECH or Perkins, as the case
may be, and (C) any share liquidity or withholding program for employees or
officers of INTECH or Perkins, as the case may be; and


 


(vii)                           the Borrower or
any Subsidiary may make any Restricted Payments; provided that at the
time each such Restricted Payment is made, (A) no Event of Default shall have
occurred and be continuing, or would result therefrom and (B) immediately prior
to, and after giving effect to, each such Restricted Payment, no Loans shall be
outstanding.


 


(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 


 


66

















 


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 fees and regularly scheduled or other
mandatory principal payments, in each case as and when due in respect of any
Indebtedness;


 


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


 


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


 


(iv)                              payments of
Indebtedness of the Borrower to any of the Subsidiaries, and payments of
Indebtedness owed by the Subsidiaries to the Borrower or any other
Subsidiaries;


 


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


 


(vi)                              payments of
Indebtedness made with the Net Proceeds from the issuance, after the Closing
Date, of common or preferred stock in the Borrower; and


 


(vii)                           other payments
of any Indebtedness; provided that (A) at the time each such payment is
made (or irrevocable notice in respect of such payment is given) no Event of
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 (other than the Excluded Subsidiary)
existing on the Closing Date (other than the Guarantor and the Excluded Subsidiary)
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 Closing 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 


 


67

















 


in cash to
Janus International Holding LLC in an amount approximately equal to the amount
of such excess, but only to the extent that such excess is at least equal to
$5,000,000 (or its equivalent in pounds sterling).


 


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


 


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 (other than Excluded
Subsidiary) to the Lenders or the Administrative Agent, or any report,
certificate or other written information furnished by the Borrower or any
Subsidiary to the Lenders or the Administrative 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 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 the Guarantor
(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 Administrative Agent or any Lender;


 


(f)                                    the failure of the Borrower or any Subsidiary
(other than the Excluded Subsidiary) to pay any Material Indebtedness (after
giving effect to any cure periods, as applicable); 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 early 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;


 


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(g)                                 the Borrower or any Subsidiary (other than the
Excluded Subsidiary) shall (i) have an order for relief entered with respect to
it under the Federal Bankruptcy Code, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make a general
assignment for the benefit of creditors, (iv) apply for, seek, consent to or
acquiesce in the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its property,
(v) institute any proceeding seeking an order for relief under the Federal
Bankruptcy Code or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment
or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an answer or
other pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action to authorize or effect any of the
foregoing actions set forth in this 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 (other than the Excluded 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)                                     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 (i) 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 not denied coverage of the amount
of such judgment or order;


 


(j)                                     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 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;


 


(k)                                  a Change in Control shall have occurred;


 


69

















 


(l)                                     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;


 


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
Administrative 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.


 


ARTICLE
VIII


 


THE
AGENT


 


Each of the Lenders hereby
irrevocably appoints the entity named as Administrative Agent in the heading of
this Agreement to serve as administrative agent under the Loan Documents, and
authorizes the Administrative Agent to take such actions and to exercise such
powers as are delegated to the Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental thereto.


 


The Person serving as the
Administrative 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 Administrative 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 Administrative Agent hereunder and without any duty to account
therefor to the Lenders.


 


The Administrative 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
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative 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 Administrative Agent is
required to exercise as directed in writing by the Required Lenders (or


 


70
















 


such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in the
Loan Documents), provided that the Administrative Agent shall not be required
to take any action that, in its opinion, could expose the Administrative 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 Administrative 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 Administrative Agent or any of its Affiliates in any
capacity. The Administrative 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
Administrative 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, bad faith or wilful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or a Lender, and
the Administrative 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 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 Administrative Agent or satisfaction of any condition that expressly refers
to the matters described therein being acceptable or satisfactory to the
Administrative Agent.


 


The Administrative 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 Administrative 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 Administrative Agent may consult 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 Administrative 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 Administrative Agent. The Administrative 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 Administrative 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 Administrative Agent.


 


71

















 


Subject to the appointment and
acceptance of a successor Administrative Agent as provided in this paragraph,
the Administrative 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, and in the
absence of a continuing Event of Default, subject to the Borrower’s consent
(not to be unreasonably withheld), 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 Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative 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, which, in
the absence of a continuing Event of Default, shall be subject to the Borrower’s
consent (not to be unreasonably withheld). Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents. After the Administrative Agent’s resignation hereunder
and under the other Loan Documents, the provisions of this Article VIII and
Section 9.05 shall continue in effect for the benefit of such retiring
Administrative 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 Administrative Agent.


 


Each Lender acknowledges that it
has, independently and without reliance upon the Administrative 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 Administrative 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 this 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 Administrative Agent or the Lenders on the
Closing Date.


 


Each Lender agrees (a) to reimburse
the Administrative Agent, on demand, in the amount of its pro rata share (based
on its Commitment hereunder or, if the Total Commitment shall be terminated,
the percentage it holds of the aggregate outstanding principal amount of the
Loans and participations in Swingline Loans) of any expenses incurred for the
benefit of the Lenders by the Administrative 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 Administrative 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, 


 


72

















 


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 Administrative 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 Administrative 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 Administrative 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.


 


Notwithstanding anything herein to
the contrary, no Person named on the cover page of this Agreement as an
Arranger 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 or electronic transmission as follows:


 


(a)                                  if to the Borrower, to it at 151 Detroit
Street, Denver, CO 80206, Attention of Chief Financial Officer (Fax No. (303)
336-4020); with a copy to General Counsel (Fax No. (303) 639-6662);


 


(b)                                 if to the Administrative Agent or the
Swingline Lender, to it at JPMorgan Chase Bank, N.A., 1111 Fannin Street, 10th Floor, Houston, TX 77002, Attn: Maria A. Saez
or Shanida Littlejohn (Fax No. (713) 374-4312) (Email Address:
maria.a.saez@jpmchase.com or shanida.x.littlejohn@jpmchase.com); 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 electronic transmission,
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 in accordance with the latest
unrevoked direction from such party given in accordance with this 


 


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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 Administrative
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 (other than
contingent indemnification and expense reimbursement obligations for which no
claim has been made) is outstanding and unpaid and so long as the Commitments
have not been terminated.


 


SECTION 9.03                                            Effectiveness.  This Agreement shall become effective when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have received copies thereof which, when taken
together, bear the signatures of all the initial Lenders providing the Total
Commitment.  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 Administrative 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 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
Administrative 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 Administrative Agent an Assignment and Assumption and
the Lenders party to such Assignment and Assumption shall pay to the
Administrative Agent a processing and recordation fee of $3,500 (except that no
recordation fee shall be required if the assignee is an 


 


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Affiliate of the
assignor), (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire and (vi) without the prior
written consent of the Administrative Agent and, in the absence of a continuing
Event of Default, the Borrower, no assignment shall be made to a prospective
assignee that bears a relationship to the Borrower described in Section
108(e)(4) of the Code. 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 2.15, 2.17, 2.21 and 9.05, as well as
to any Fees accrued for its account prior to the effective date of the
Assignment and Assumption 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 Administrative 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 (and
stated interest) 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
Administrative Agent and the Lenders shall 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, the
Administrative Agent and the Swingline Lender to such assignment, the
Administrative 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, the Swingline Lender or the Administrative 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 (w) such Lender’s obligations under this Agreement
shall remain unchanged, (x) such Lender shall remain solely responsible to the
other 


 


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parties hereto for the
performance of such obligations, (y) the Borrower, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement,
and such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans and to approve any amendment, modification or
waiver of any provision of this Agreement and (z) without the prior written
consent of the Administrative Agent and, in the absence of a continuing Event
of Default, the Borrower, no participation shall be sold to a prospective
participant that bears a relationship to the Borrower described in Section
108(e)(4) of the Code; 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).  A participant shall be entitled
to the benefit of the cost protection provisions contained in Sections 2.15,
2.17 and 2.21 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 except to the
extent such entitlement to receive a greater payment results from an adoption
of or change in law, or in the interpretation or applicable thereof, that
occurs after the participant acquires the applicable 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”); provided
that no Lender shall have any obligation to disclose all or any portion of the
Participant Register to any Person (including the identity of any participant
or any information relating to a participant’s interest in any Commitments,
Loans or its other obligations under any Loan Document) except to the extent
that such disclosure is necessary to establish that such Commitment, Loan or
other obligation is in registered form under Section 5f.103-1(c) of the United
States Treasury Regulations. 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)                                    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 Administrative Agent, the Arrangers and their
respective Affiliates in connection with the arrangement and syndication of the
credit facility established hereby, the preparation, execution and delivery of
this Agreement and the other Loan Documents, or incurred by the Administrative
Agent in connection with the administration 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



 


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hereby
contemplated shall be consummated and except for such costs and expenses
incurred after the termination of this Agreement), or incurred by the
Administrative 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 Simpson Thacher & Bartlett LLP and, in
connection with any such enforcement or protection, the reasonable fees,
charges and disbursements of any other counsel for the Administrative Agent or
any Lender (it being agreed that, notwithstanding anything to the contrary
contained herein, the Borrower shall be responsible for the fees, charges and
disbursements of only one counsel unless, in the good faith judgment of the
Administrative 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 Administrative Agent (and any
sub-agent thereof), each Lender, the Arrangers 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,
losses, damages, costs and expenses (including reasonable and invoiced counsel
fees, charges and disbursements of one counsel selected by the Administrative
Agent for all the Indemnitees, such local counsel as the Administrative Agent
may in good faith deem advisable and, in the event the Administrative 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 (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), liability, loss,
damage, cost or expense is determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from (x) the gross
negligence, bad faith or wilful misconduct of such Indemnitee or (y) disputes
solely among Indemnitees that did not arise out of any act or omission of the
Borrower or its Affiliates; it being understood that, notwithstanding the
foregoing but solely to the extent such indemnification would not be denied
pursuant to clause (x) of this proviso, clause (y) of this proviso shall not
limit the Borrower’s indemnification obligations with respect to any Indemnitee
acting in its capacity as Administrative Agent or Arranger. Each of the parties
hereto also agrees not to assert any claim for special, indirect, consequential
or punitive damages against either Loan Party, the Administrative Agent, any
Arranger, 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.


 


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(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 Administrative 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 due and payable to 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 deposits or
other obligations may be unmatured.  Each
Lender agrees promptly to notify the Borrower and the Administrative Agent after
any such set off and application made by such Lender; provided, that the failure to
give such notice shall not affect the validity of such setoff and application
made pursuant to the terms hereof.  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.


 


SECTION 9.08                                            Waivers; Amendment.  (a)  No
failure or delay of the Administrative 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 Administrative
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 directly affected thereby, (ii) change or extend
the Commitment or decrease or 


 


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extend the date for
payment of the Commitment Fee of any Lender without the prior written consent
of such Lender, (iii) amend or modify the provisions of this Section or the
definition of “Required Lenders” without the prior written consent of each
Lender or (iv) release the Guarantor from 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
Administrative Agent or the Swingline Lender hereunder without the prior
written consent of the Administrative 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
Administrative 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 Administrative 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 9.09                                            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


 


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PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


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


 


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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) on a
confidential basis, 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 (in which case, except in
connection with regulatory examinations or audits or as otherwise requested by
regulatory authorities, such Lender agrees to inform the Borrower promptly
thereof to the extent legally permissible); (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 Administrative 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 Administrative 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 Administrative
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 Administrative 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
Administrative 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 Administrative Agent, it will provide to the
Administrative 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), and (j) (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
Administrative Agent to one or more e-mail addresses as shall be designated by
the Administrative 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 Administrative 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
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent) (the “Platform”). Nothing
in this Section shall prejudice the right of the Administrative 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
Administrative Agent in writing (including by electronic communication) from
time to time to ensure that the Administrative 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 Administrative Agent) as “sent” in the e-mail system of the
sending party or, in the case of any such communication to the Administrative
Agent or any Lender, upon the posting of a record of such communication as “received”
in the e-mail system of the Administrative Agent or any Lender; provided
that if such communication is not so received by the Administrative Agent or a
Lender during the normal business hours of the Administrative Agent or
applicable Lender, such communication shall be deemed delivered at the opening
of business on the next Business Day for the Administrative Agent or applicable
Lender.


 


(e)                                  Each party hereto acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Communications and the Platform are provided “as is” and “as available,” (iii) none
of the Administrative Agent, its Affiliates or any of its Related Parties
(collectively, the “JPMorgan Parties”) warrants the adequacy of the
Platform 


 


82

















 


or the accuracy or
completeness of the Communications or the Platform, and each JPMorgan 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 JPMorgan 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 Administrative 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 Administrative 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.


 


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IN WITNESS WHEREOF, the Borrower,
the Administrative Agent and the Lenders have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.


 


 


	
   

  	
  JANUS CAPITAL GROUP INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to the 364-Day Competitive Advance and Revolving Credit
Facility Agreement]


 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A., as Administrative
  Agent, as Swingline Lender and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to the 364-Day Competitive Advance and Revolving Credit
Facility Agreement]


 

















 


	
   

  	
  [LENDER], as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title

  



 


[Signature Page to the 364-Day Competitive Advance and Revolving Credit
Facility Agreement]