DEFAULT OR
DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING.
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) and (c) of this Section 4.01.
SECTION 4.02.
CONDITIONS PRECEDENT TO EFFECTIVENESS.
THIS AGREEMENT SHALL
BECOME EFFECTIVE ON THE DATE ON WHICH:
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(A)
THE AGENT (OR ITS COUNSEL) SHALL HAVE RECEIVED EITHER (I) A COUNTERPART OF
THIS AGREEMENT AND OF THE LLC GUARANTEE SIGNED ON BEHALF OF EACH PARTY THERETO,
OR (II) WRITTEN EVIDENCE SATISFACTORY TO THE AGENT (WHICH MAY INCLUDE TELECOPY
TRANSMISSIONS OF SIGNED SIGNATURE PAGES) THAT THIS AGREEMENT AND OF THE LLC
GUARANTEE HAVE BEEN SIGNED ON BEHALF OF EACH PARTY THERETO.
(B)
THE AGENT SHALL HAVE RECEIVED A FAVORABLE WRITTEN OPINION OF (I) SKADDEN,
ARPS, SLATE, MEAGHER & FLOM LLP, COUNSEL TO THE BORROWER, TO THE EFFECT AND
COVERING THOSE MATTERS SET FORTH IN EXHIBIT C-1 HERETO, AND (II) CURT R. FOUST,
ASSISTANT GENERAL COUNSEL OF THE BORROWER OR KELLY A. HOWES, GENERAL COUNSEL OF
THE BORROWER, TO THE EFFECT AND COVERING THOSE MATTERS SET FORTH IN EXHIBIT C-2
HERETO.
THE BORROWER HEREBY INSTRUCTS SUCH COUNSEL TO DELIVER SUCH OPINIONS TO
THE AGENT.
(C)
ALL LEGAL MATTERS INCIDENTAL TO THIS AGREEMENT AND THE BORROWINGS HEREUNDER
SHALL BE REASONABLY SATISFACTORY TO THE LENDERS AND TO CRAVATH, SWAINE & MOORE
LLP, COUNSEL FOR THE AGENT.
(D)
THE AGENT SHALL HAVE RECEIVED SUCH DOCUMENTS AND CERTIFICATES AS THE AGENT
OR ITS COUNSEL SHALL REASONABLY HAVE REQUESTED RELATING TO THE ORGANIZATION,
EXISTENCE AND GOOD STANDING OF THE BORROWER AND JANUS CAPITAL MANAGEMENT LLC,
THE AUTHORIZATION OF THE TRANSACTIONS AND ANY OTHER LEGAL MATTERS RELATING TO
THE BORROWER, JANUS CAPITAL MANAGEMENT LLC, THIS AGREEMENT OR THE TRANSACTIONS,
ALL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE AGENT AND ITS COUNSEL.
(E)
THE AGENT SHALL HAVE RECEIVED A CERTIFICATE, DATED THE DATE HEREOF AND
SIGNED BY A FINANCIAL OFFICER OF THE BORROWER, CONFIRMING COMPLIANCE WITH THE
CONDITIONS PRECEDENT SET FORTH IN PARAGRAPHS (B) AND (C) OF SECTION 4.01.
(F)
THE AGENT SHALL HAVE RECEIVED ALL FEES AND OTHER AMOUNTS DUE AND PAYABLE ON
OR PRIOR TO THE DATE HEREOF.
(G)
THE AGENT SHALL HAVE RECEIVED EVIDENCE REASONABLY SATISFACTORY TO IT THAT
ALL AMOUNTS OUTSTANDING OR ACCRUED UNDER THE EXISTING CREDIT AGREEMENT,
INCLUDING ALL FEES ACCRUED UNDER THE EXISTING CREDIT AGREEMENT THROUGH THE DAY
IMMEDIATELY PRECEDING THE RESTATEMENT EFFECTIVE DATE, SHALL HAVE BEEN PAID IN
FULL, REGARDLESS OF WHETHER ANY SUCH AMOUNTS ARE AT THE TIME DUE AND PAYABLE
UNDER THE EXISTING CREDIT AGREEMENT.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender with respect to itself and
the Subsidiaries that, until the Commitments have expired or been terminated and
the
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principal of or interest on each Loan, all Fees or all other expenses or amounts
payable under any Loan Document shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing:
SECTION 5.01.
CONDUCT OF