EXHIBIT 10.1
EXECUTION COPY
SECOND AMENDMENT dated as of April 20, 2001
(this "Amendment"), among XXXXXXXX FINANCIAL INC., a
Delaware corporation ("Xxxxxxxx" or a "Borrower"),
JANUS CAPITAL CORPORATION, a Colorado corporation
("Janus" or a "Borrower", and together with Xxxxxxxx,
the Borrowers"), the lenders party hereto (the
"Lenders"), CITIBANK, N.A., as Administrative Agent
for the Lenders (in such capacity, the "Agent") and
as Swingline Lender.
A. Reference is made to (a) the 364-Day Credit Agreement dated
as of December 7, 2000 (as amended, supplemented or otherwise modified from time
to time, the "364-Day Agreement") and (b) the Five-Year Credit Agreement dated
December 7, 2000 (as amended, supplemented or otherwise modified from time to
time, the "5-Year Agreement", and together with the 364-Day Agreement, the
"Agreements"), in each case among the Borrowers, the Lenders party thereto,
Xxxxx Fargo Bank West, N.A., as Documentation Agent for the Lenders, The Chase
Manhattan Bank, as Syndication Agent for the Lenders and the Agent. Capitalized
terms used but not otherwise defined herein have the meanings assigned to them
in the Agreements.
B. The Borrowers have requested that the Lenders amend certain
provisions of the Agreements. The Lenders are willing to agree to such
amendments on the terms and subject to the conditions of this Amendment.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Article 1 of the Agreements. Article
I of each Agreement is hereby amended by:
(a) deleting the last clause "or (iii) a 'change of control'
in the indenture under which the XXXXX are issued shall occur" from the
definition of "Change of Control" and replacing it with the following:
"or (iii) a 'change of control' in any instrument
under which any Indebtedness permitted by Sections
6.01(a)(iv), (ix) or (xi) is issued shall occur."
(b) adding the following clause at the end of the
parenthetical contained in clause (g) of the definition of
"Indebtedness":
"and other than Xxxxxxxx'x obligations under any
forward contract to purchase its own common stock as
part of its stock repurchase program; provided that
the documentation related to such forward contract
provides that in the event of a bankruptcy of
Xxxxxxxx, such obligations shall rank on a parity
with respect to priority of payment with claims of
holders of common stock of Xxxxxxxx)";
(c) deleting the words "as reasonably determined by Xxxxxxxx"
from the definition of "Liquid Assets";
(d) deleting in its entirety, the definition of "Xxxxx
Property"; and
(e) deleting in its entirety, the definition of "XXXXX."
SECTION 2. Amendment to Section 5.08 of the Agreements.
Section 5.08 of each Agreement is hereby deleted in its entirety and replaced by
the following:
"SECTION 5.08. Liquidity. Xxxxxxxx and its Consolidated
Subsidiaries shall at all times maintain Liquid Assets having an
aggregate fair market value greater than or equal to the sum of all
Indebtedness outstanding at such time that is permitted by Sections
6.01(a)(iv), (v) and (xi),
including, in the case of such Indebtedness issued with original issue
discount, the sum of the issue price plus all accrued original issue
discount at such time of all such outstanding Indebtedness."
SECTION 3. Amendment to Section 6.01 of the Agreements.
Section 6.01 of each Agreement is hereby amended by:
(a) deleting the word "and" at the end of clause (a)(ix);
(b) deleting the period at the end of clause (a)(x) and
replacing it with the word "; and"; and
(c) adding a new clause (a)(xi) that reads in its entirety as
follows:
"(xi) other Indebtedness of Xxxxxxxx and its Related
Subsidiaries that is not secured by any Lien in an aggregate
principal amount at any time outstanding that does not exceed
$800,000,000; provided that the incurrence of such
Indebtedness would not cause a Default or an Event of Default
under any other Section of this Agreement."
SECTION 4. Amendment to Section 6.01(a)(viii) of the
Agreements. Section 6.01(a)(viii) of each Agreement is hereby deleted in its
entirety and replaced by the following:
"(viii) Intentionally Deleted;".
SECTION 5. Amendment to Section 6.02(g)of the Agreements.
Section 6.02(g) of each Agreement is hereby deleted in its entirety and replaced
by the following:
"(g) Intentionally Deleted;".
SECTION 6. Amendment to Section 6.03(b) of the Agreements.
Section 6.03(b) of each Agreement is hereby deleted in its entirety and replaced
by the following:
"(b) Intentionally Deleted.".
SECTION 7. Amendment to Section 6.07(d) of the Agreements.
Section 6.07(d) of each Agreement is hereby deleted in its entirety and replaced
by the following:
"(d) permit Consolidated Adjusted Net Worth to be less than
$750,000,000 at any time; or".
SECTION 8. Amendment to Section 6.07(e) of the Agreements.
Section 6.07(e) of each Agreement is hereby deleted in its entirety and replaced
by the following:
"(e) permit Average Assets Under Management to be less than
$180,000,000,000 on the last day of any month."
SECTION 9. Representations, Warranties and Agreements. Each
Borrower hereby represents and warrants to and agrees with each Lender and the
Agent that:
(a) The representations and warranties of each Borrower set
forth in Article III of the Agreements are true and correct in all
material respects with the same effect as if made on the Amendment
Effective Date (as defined below), except to the extent such
representations and warranties expressly relate to an earlier date.
(b) Such Borrower has the requisite power and authority to
execute, deliver and perform its obligations under this Amendment and
to perform its obligations under the Agreements as amended by this
Amendment.
(c) The execution, delivery and performance by each Borrower
of this Amendment and the performance by each Borrower of the
Agreements, as amended by this Amendment, (i) have
been duly authorized by all requisite action and (ii) will not
(A) violate (x) any provision of law, statute, rule or regulation, or
of the certificate or articles of incorporation or other constitutive
documents or by-laws of either Borrower, (y) any order of any
Governmental Authority or (z) any provision of any indenture, agreement
or other instrument to which either Borrower is a party or by which
either of them or any of their property is or may be bound, (B) be in
conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under any such indenture,
agreement for borrowed money or other agreement or instrument or
(C) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by
either Borrower.
(d) This Amendment has been duly executed and delivered by
each Borrower. Each of this Amendment and the Agreements, as amended by
this Amendment, constitutes a legal, valid and binding obligation of
each Borrower, enforceable against each Borrower in accordance with its
terms, except as enforceability may be limited by (i) any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and (ii)
general principals of equity.
(e) As of the Amendment Effective Date, no Event of Default or
Default has occurred and is continuing.
(f) At the time of and immediately after giving effect to this
Amendment, the outstanding aggregate principal amount of all Loans made
by the Lenders under the Agreements (i) to Xxxxxxxx shall not exceed
$350,000,000 and (ii) to Janus shall not exceed $250,000,000.
SECTION 10. Conditions to Effectiveness. This Amendment shall
become effective on the date of the satisfaction in full of the following
conditions precedent (the "Amendment Effective Date"):
(a) The Agent shall have received duly executed counterparts
hereof which, when taken together, bear the authorized signatures of
each Borrower, the Agent and the Required Lenders.
(b) All legal matters incident to this Amendment shall be
satisfactory to the Required Lenders, the Agent and Cravath, Swaine &
Xxxxx, counsel for the Agent.
(c) The Agent shall have received such other documents,
instruments and certificates as it or its counsel shall reasonably
request.
SECTION 11. Amendment Fee. Xxxxxxxx agrees to pay to each
Lender that executes and delivers a copy of this Amendment to the Agent (or its
counsel) on or prior to May 4, 2001 an amendment fee (the "Amendment Fee") in an
amount equal to 0.05% of such Lender's aggregate Commitments (whether used or
unused) under the Agreements as of Amendment Effective Date; provided that
Xxxxxxxx shall have no liability for any such Amendment Fee if this Amendment
does not become effective. Such Amendment Fee shall be payable to each Lender
entitled to receive such fee on (i) the Amendment Effective Date, in the case of
each Lender entitled to receive such fee on the Amendment Effective Date, or
(ii) the date that is two Business Days after the date that the Agent (or its
counsel) receives an executed copy of this Amendment from such Lender, in the
case of each Lender that becomes entitled to receive such fee after the
Amendment Effective Date.
SECTION 12. Agreements. Except as specifically stated herein,
the Agreements shall continue in full force and effect in accordance with the
provisions thereof. As used therein, the terms "Agreement", "herein",
"hereunder", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Agreements as modified hereby.
SECTION 13. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Counterparts. This Amendment may be executed in
any number of counterparts, each of which shall be an original but all of which,
when taken together, shall constitute but one instrument. Delivery of an
executed counterpart of a signature page of this Amendment by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 15. Expenses. Each Borrower agrees to reimburse the
Agent for its out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
date first above written.
XXXXXXXX FINANCIAL INC.,
by
/s/ Xxxxxxx X. XxXxxxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President - Treasurer
JANUS CAPITAL CORPORATION,
by
/s/ Xxxxxx X. Early
-----------------------------------
Name: Xxxxxx X. Early
Title: Vice President and General Counsel
CITIBANK, N.A., individually and as
Administrative Agent and as Swingline Lender,
by
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
XXXXX FARGO BANK WEST, N.A.,
individually and as Documentation Agent,
by
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, individually and as
Syndication Agent,
by
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
by
/s/ Xxxx X. X'Xxxxx
-----------------------------------
Name: Xxxx X. X'Xxxxx
Title: Managing Director
THE GOVERNOR AND COMPANY OF THE BANK
OF IRELAND,
by
/s/ X. Xxxxx
-----------------------------------
Name: X. Xxxxx
Title:
by
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Account Executive
BANK OF NEW YORK,
by
/s/ X. Xxxxxx
-----------------------------------
Name: X. Xxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
by
/s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Director
by
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
FIRSTAR BANK N.A.,
by
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FLEET NATIONAL BANK,
by
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
HSBC,
by
/s/ L. Xxx Xxxxx
-----------------------------------
Name: L. Xxx Xxxxx
Title: Senior Vice President
THE ROYAL BANK OF SCOTLAND plc,
by
/s/ Xxxxx XxXxxx
-----------------------------------
Name: Xxxxx XxXxxx
Title: Senior Vice President
STATE STREET BANK AND TRUST COMPANY,
by
/s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
UMB, N.A.,
by
/s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
