BE IN COMPLIANCE WITH SECTION 6.07(C) FOR A PERIOD OF
FIVE CONSECUTIVE BUSINESS DAYS ENDING IMMEDIATELY PRIOR TO THE DATE OF SUCH
BORROWING.
(D)
AT THE TIME OF, AND IMMEDIATELY AFTER GIVING EFFECT TO SUCH BORROWING, THE
SUM OF THE REVOLVING CREDIT EXPOSURES OF ALL THE LENDERS PLUS THE AGGREGATE
AMOUNT OF ALL COMPETITIVE LOANS OUTSTANDING AT SUCH TIME SHALL NOT EXCEED THE
LESSER OF (X) THE TOTAL COMMITMENT AND (Y) THE MAXIMUM AVAILABILITY AT SUCH
TIME.
(E)
THE AGENT SHALL HAVE RECEIVED A CERTIFICATE OF A FINANCIAL OFFICER OF THE
BORROWER, DATED THE DATE OF SUCH BORROWING, SETTING FORTH THE MAXIMUM
AVAILABILITY AS OF THE DATE OF SUCH BORROWING.
EACH BORROWING SHALL BE DEEMED TO CONSTITUTE A REPRESENTATION AND WARRANTY BY
THE BORROWER ON THE DATE OF SUCH BORROWING AS TO THE MATTERS SPECIFIED IN
PARAGRAPHS (B), (C) AND (D) OF THIS SECTION 4.02.
IT IS UNDERSTOOD THAT THIS
SECTION 4.02 SHALL NOT APPLY TO A CONVERSION OR CONTINUATION OF ANY STANDBY
BORROWING PURSUANT TO SECTION 2.05.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, until the Commitments
have expired or been terminated and the principal of or interest on each Loan,
all Fees or all other expenses or amounts payable under any Loan Document shall
have been paid in full, unless the Required Lenders shall otherwise consent in
writing:
SECTION 5.01.
CONDUCT OF BUSINESS; MAINTENANCE OF OWNERSHIP OF SUBSIDIARIES AND
MAINTENANCE OF PROPERTIES.
(A)
THE BORROWER WILL, AND WILL CAUSE EACH
SUBSIDIARY (OTHER THAN THE EXCLUDED SUBSIDIARY) TO, CARRY ON AND CONDUCT ITS
BUSINESS IN SUBSTANTIALLY THE SAME MANNER AND IN SUBSTANTIALLY THE SAME FIELDS
OF ENTERPRISE AS IT IS PRESENTLY CONDUCTED; PROVIDED THAT NO SALE, TRANSFER OR
DISPOSITION OF ASSETS (INCLUDING BY MEANS OF A MERGER) PERMITTED UNDER SECTIONS
6.03, 6.04 AND 6.05 WILL BE PROHIBITED BY THIS PARAGRAPH (A).
(B)
THE BORROWER WILL, AND WILL CAUSE EACH SUBSIDIARY TO DO ALL THINGS
NECESSARY TO REMAIN DULY ORGANIZED, VALIDLY EXISTING AND, WHERE SUCH CONCEPT
EXISTS IN THE RELEVANT JURISDICTION OF ORGANIZATION, IN GOOD STANDING IN ITS
JURISDICTION OF ORGANIZATION AND MAINTAIN ALL REQUISITE AUTHORITY TO CONDUCT ITS
BUSINESS IN EACH
54
JURISDICTION IN WHICH ITS BUSINESS IS CONDUCTED, EXCEPT WHERE THE FAILURE TO DO
SO COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT OR IN
CONNECTION WITH A DISSOLUTION, MERGER, OR DISPOSITION OF A SUBSIDIARY PERMITTED
UNDER SECTION 6.04.
(C)
THE BORROWER WILL AT ALL TIMES OWN, DIRECTLY OR INDIRECTLY, AT LEAST
(I) 50.1% OF THE OUTSTANDING EQUITY INTERESTS OF EACH OF INTECH AND PERKINS AND
(II) 95% OF THE OUTSTANDING EQUITY INTERESTS OF JANUS CAPITAL MANAGEMENT LLC, IN
EACH CASE FREE AND CLEAR OF ANY LIENS ON SUCH EQUITY INTERESTS, OTHER THAN LIENS
CREATED UNDER THE LOAN DOCUMENTS AND STATUTORY LIENS APPLICABLE TO EQUITY
INTERESTS.
(D)
THE BORROWER WILL, AND WILL CAUSE EACH SUBSIDIARY (OTHER THAN THE EXCLUDED
SUBSIDIARY) TO, DO ALL THINGS NECESSARY TO MAINTAIN, PRESERVE, PROTECT AND KEEP
THEIR PROPERTIES MATERIAL TO THE CONDUCT OF