DETERMINED AS OF THE END OF THE FISCAL
QUARTER OF THE BORROWER MOST RECENTLY THEN ENDED PRIOR TO THE DATE OF THE
CONSUMMATION THEREOF AND FOR WHICH FINANCIAL STATEMENTS SHALL HAVE BEEN
DELIVERED PURSUANT TO SECTION 5.04(A) OR 5.04(B), BUT GIVING EFFECT ON A PRO
FORMA BASIS TO ANY INDEBTEDNESS INCURRED IN CONNECTION WITH SUCH PURCHASE, SHALL
BE LESS THAN 4.50:1.00, (Y) NO LOANS SHALL BE OUTSTANDING AND (Z) NO DEFAULT
SHALL HAVE OCCURRED AND BE CONTINUING;
(X)
INVESTMENTS IN JANUS CAPITAL INTERNATIONAL LIMITED MADE FOR THE SOLE
PURPOSE OF ENABLING JANUS CAPITAL INTERNATIONAL LIMITED TO MEET THE MINIMUM
CAPITAL MAINTENANCE REQUIREMENTS APPLICABLE TO JANUS CAPITAL INTERNATIONAL
LIMITED UNDER THE RULES AND REGULATIONS OF THE FSA (AND MAINTAIN REGULATORY
CAPITAL IN EXCESS THEREOF IN AN AMOUNT NOT TO EXCEED 50% OF SUCH MINIMUM
REGULATORY CAPITAL); PROVIDED THAT THE
68
AGGREGATE AMOUNT OF SUCH INVESTMENTS OUTSTANDING AT ANY TIME SHALL NOT EXCEED
THE SUM OF (A) THE JCIL DISTRIBUTION AMOUNT AS OF SUCH TIME AND (B) £10,000,000;
AND
(XI)
INVESTMENTS OF CUSTOMER CASH AND CUSTOMER SECURITIES.
SECTION 6.10.
RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF INDEBTEDNESS.
(A)
THE
BORROWER WILL NOT, AND WILL NOT PERMIT ANY SUBSIDIARY (OTHER THAN THE EXCLUDED
SUBSIDIARY) TO, DECLARE OR MAKE, OR AGREE TO PAY OR MAKE, DIRECTLY OR
INDIRECTLY, ANY RESTRICTED PAYMENT, OR INCUR ANY OBLIGATION (CONTINGENT OR
OTHERWISE) TO DO SO, EXCEPT THAT:
(I)
ANY SUBSIDIARY MAY DECLARE AND PAY DIVIDENDS OR MAKE OTHER RESTRICTED
PAYMENTS WITH RESPECT TO ITS CAPITAL STOCK, PARTNERSHIP OR MEMBERSHIP INTERESTS
OR OTHER SIMILAR EQUITY INTERESTS, RATABLY TO THE HOLDERS OF SUCH EQUITY
INTERESTS;
(II)
SO LONG AS NO DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING OR WOULD
RESULT THEREFROM, THE BORROWER MAY DECLARE AND PAY DIVIDENDS OR MAKE OTHER
DISTRIBUTIONS (A) WITH RESPECT TO ITS COMMON STOCK (X) IN AN AMOUNT NOT
EXCEEDING $0.04 PER SHARE DURING ANY FISCAL YEAR (SUBJECT TO APPROPRIATE
ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS, SHARE COMBINATIONS AND SIMILAR
TRANSACTIONS) OR (Y) PAYABLE IN ADDITIONAL EQUITY INTERESTS (OTHER THAN
DISQUALIFIED STOCK) OR (B) WITH RESPECT TO ITS PREFERRED EQUITY INTERESTS
PAYABLE IN CASH OR IN ADDITIONAL EQUITY INTERESTS (OTHER THAN DISQUALIFIED
STOCK);
(III)
IN ADDITION TO THE TRANSACTIONS PERMITTED UNDER SECTION 6.09(B)(IX) AND
SO LONG AS NO DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING OR WOULD RESULT
THEREFROM, THE BORROWER AND THE SUBSIDIARIES MAY MAKE (A) RESTRICTED PAYMENTS TO
CURRENT OR FORMER DIRECTORS, OFFICERS, EMPLOYEES OR CONSULTANTS OF THE BORROWER
AND THE SUBSIDIARIES PURSUANT TO AND IN ACCORDANCE WITH STOCK OPTION PLANS OR
OTHER BENEFIT PLANS OR AGREEMENTS OF THE BORROWER OR ANY SUBSIDIARY (THE
"COMPANY PLANS"), INCLUDING IN CONNECTION WITH THE DEATH OR DISABILITY OF ANY
SUCH PERSON, PROVIDED THAT THE AGGREGATE AMOUNT OF SUCH PAYMENTS MADE IN THE
FORM OF CASH SINCE THE RESTATEMENT EFFECTIVE DATE SHALL NOT EXCEED $10,000,000
IN THE AGGREGATE; OR (B) RESTRICTED PAYMENTS IN THE FORM OF AN EXCHANGE OF
OUTSTANDING STOCK OPTIONS FOR NEW STOCK OPTIONS PURSUANT TO AND IN ACCORDANCE
WITH THE COMPANY PLANS;
(IV)
THE BORROWER