THIRD AMENDMENT dated as of October
24, 2001 (this "Amendment"), among XXXXXXXX
FINANCIAL INC., a Delaware corporation
("Xxxxxxxx" or a "Borrower"), JANUS CAPITAL
CORPORATION, a Colorado corporation ("Janus"
and, together with Xxxxxxxx, the
"Borrowers"), the lenders party hereto (the
"Lenders") and CITIBANK, N.A., as
administrative agent (in such capacity, the
"Agent") and as swingline lender.
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 "Five-Year Agreement", and together with the 364-Day Agreement, the
"Credit Agreements"), in each case among the Borrowers, the Lenders party
thereto, Xxxxx Fargo Bank West, N.A., as documentation agent, The Chase
Manhattan Bank, as syndication agent and agent. Capitalized terms used but not
otherwise defined herein have the meanings assigned to them in the Credit
Agreements.
The Borrowers have requested that the Lenders amend certain provisions
of the Credit Agreements. The Lenders are willing to agree to such amendments on
the terms and subject to the conditions of this Amendment. The 364-Day Agreement
shall be amended in the form of an Amended and Restated 364-Day Credit Agreement
dated as of October 24, 2001 (the "Amended and Restated 364-Day Agreement").
This Amendment amends the Five-Year Agreement.
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 the Recitals. The Recitals are hereby amended
by deleting the references to "$200,000,000" and "$100,000,000" in the first
paragraph and replacing them with "two-thirds of the Available Borrowing Amount"
and "one-third of the Available Borrowing Amount", respectively.
SECTION 2. Amendments to Article I. Article I of the Five-Year
Agreement is hereby amended by:
(a) adding in the appropriate alphabetical order therein the following
new definition of "Available Borrowing Amount":
"`Available Borrowing Amount' shall mean, on any date, the
aggregate amount of the Commitments minus the amount of any
reduction in the available amount of the Commitments that
shall be applicable under Section 2.24 on such date."
(b) deleting the definition of "Maturity Date" in its entirety and
replacing it with the following new definition:
"`Maturity Date' shall mean October 23, 2005."
(c) deleting the definition of 364-Day Agreement in its entirety and
replacing it with the following new definition:
"`364-Day Agreement' shall mean the Amended and Restated
364-Day Competitive Advance and Revolving Credit Facility
Agreement dated as of October 24, 2001, as amended from time
to time, among the Borrowers, the lenders party thereto and
the Agent."
SECTION 3. Amendments to Article II. Article II of the Five-Year Credit
Agreement is hereby amended by:
(a) amending Section 2.01 by deleting clauses (a), (b) and (c) in
their entirety and replacing them with the following:
"(a) the sum of (i) the total Revolving Credit Exposures plus,
(ii) the outstanding aggregate principal amount of all
Competitive Loans exceed the Available Borrowing Amount, (b)
the outstanding aggregate principal amount of all Loans made
by the Lenders to Xxxxxxxx exceed two-thirds of the Available
Borrowing Amount or (c) the outstanding principal amount of
all Loans made by the Lenders to Janus exceed one-third of the
Available Borrowing Amount."
(b) amending Section 2.03 by deleting the references to the "Total
Commitment", "$200,000,000" and "$100,000,000" in the last three sentences of
clause (a) and replacing them with the "Available Borrowing Amount",
"two-thirds of the Available Borrowing Amount" and "one-third of the
Available Borrowing Amount", respectively.
(c) amending Section 2.06(b) by deleting the reference to "50%" and
replacing it with "33-1/3%".
(d) amending Section 2.22(a) by deleting the reference to the "Total
Commitment" in clause (ii) and replacing it with "Available Borrowing
Amount" and by deleting the reference to "$100,000,000" and replacing it
with "one-third of the Available Borrowing Amount".
(e) adding a new Section 2.24:
"SECTION 2.24. Adjustments in Available Borrowing Amount for
Fluctuations in Average Assets Under Management; Prepayment.
(a) At any time when and so long as Average Assets Under
Management shall be less than $180,000,000,000 but greater
than or equal to $170,000,000,000, the available amount of the
Commitments shall be reduced by the product of (i)
$100,000,000 and (ii) one minus a fraction with the "Total
Commitment" under and as defined in the 364-Day Agreement at
such time as the numerator and the sum of the Total Commitment
under this Agreement and the "Total Commitment" under and as
defined in the 364-Day Agreement at such time as the
denominator (the "Available Borrowing Reduction Amount").
At any time when and so long as Average Assets Under
Management shall be less than $170,000,000,000 but greater
than or equal to $150,000,000, the available amount of the
Commitments shall be reduced by an amount equal to two times
the Available Borrowing Reduction Amount at such time.
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At any time when and so long as Average Assets Under
Management shall be less than $150,000,000,000, the available
amount of the Commitments shall be reduced by an amount equal
to three times the Available Borrowing Reduction Amount at
such time.
In the event of any reduction or increase in the Total
Commitment under this Agreement or in the "Total Commitment"
under and as defined in the 364-Day Agreement, the Available
Borrowing Reduction Amount shall be recalculated, and
available amounts of the Commitments of the Lenders adjusted,
at such time, to give effect to any such reduction or
increase.
(b) In the event and on each occasion that the aggregate
amount of Loans outstanding to the Borrowers exceeds the then
Available Borrowing Amount, Xxxxxxxx shall promptly so notify
the Agent and each Borrower shall prepay its respective
Standby Borrowings in an aggregate amount at least equal to
its ratable portion of such excess.
(c) Each reduction in the Available Borrowing Amount or any
prepayment of Borrowings under this Section shall be made (i)
ratably among the Lenders in accordance with their respective
Commitments and (ii) ratably between the Borrowers in
accordance with the percentage of the Total Commitment
available to each Borrower, in each case under the terms of
this Agreement."
SECTION 4. Amendments to Section 4.01. Section 4.01 of the Five-Year
Agreement is hereby amended by:
(a) deleting the references to "$200,000,000" and "$100,000,000" in
clause (d) and replacing them with "two-thirds of the Available Borrowing
Amount" and "one-third of the Available Borrowing Amount", respectively.
(b) adding the following new clause (e):
"(e) The Agent shall have received a compliance certificate
described in Section 5.04(j)."
SECTION 5. Amendment to Section 5.04. Section 5.04 of the Five-Year
Agreement is hereby amended by deleting "and" at the end of clause (h), deleting
the period at the end of clause (i) and replacing it with "; and", and adding
the following new clause (j):
"(j) in the case of Xxxxxxxx, as soon as possible and in any
event within 10 days after the close of each calendar month, a
compliance certificate signed by its chief financial officer
showing the calculations necessary to determine Average Assets
Under Management and compliance with Section 2.24."
SECTION 6. Amendment to Section 6.01. Section 6.01(a)(xi) of the
Five-Year Agreement is hereby amended by deleting the reference to
"$800,000,000" and replacing it with "$1,200,000,000".
SECTION 7. Amendment to Section 6.07. Section 6.07 of the Five-Year
Agreement is hereby amended by deleting clause (e) in its entirety, deleting
"or" at the end of clause (d) and adding "and" at the end of clause (c).
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SECTION 8. 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 Five-Year Agreement 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 Five-Year Agreement, 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 Five-Year Agreement, 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. The Five-Year Agreement, 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.
SECTION 9. Conditions to Effectiveness. This Amendment shall become
effective on October 24, 2001, provided the following conditions precedent have
been satisfied (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 under the Five-Year Agreement.
(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 10. Fees. In consideration of the consent provided by the
consenting Lenders, the Borrowers agree to pay, on the Amendment Effective Date,
to the Agent, for the account of each Lender that delivers on or prior to
5:00 p.m., New York City time, on October 26, 2001, an executed counterpart of
this Amendment, the fee listed under the table below based on the Commitment of
such consenting Lender outstanding under the Five-Year Agreement:
4
-------------------------------------- -----------------------------
Outstanding Commitment Upfront Fee
-------------------------------------- -----------------------------
> $35,000,000 0.150%
-
-------------------------------------- -----------------------------
> 20,000,000 and < $35,000,000 0.125%
-------------------------------------- -----------------------------
< $20,000,000 0.100%
-
-------------------------------------- -----------------------------
The fees payable under this Section will be in addition to the fees payable to
the Lenders in connection with the Amended and Restated 364-Day Agreement.
SECTION 11. Five-Year Agreement. Except as specifically stated herein,
the Five-Year Agreement 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 Five-Year Agreement as
modified hereby.
SECTION 12. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. 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 facsimile shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 14. Expenses. Xxxxxxxx agrees to reimburse the Agent for its
out-of-pocket expenses in connection with the this Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel
for the Agent.
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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/ Xxxxxxxx Financial Inc.
-------------------------------------------------------
Name:
Title:
JANUS CAPITAL CORPORATION,
by: /s/ Janus Capital Corporation
-------------------------------------------------------
Name:
Title:
CITIBANK, N.A., individually and as Administrative
Agent and as Swingline Lender,
by: /s/ Citibank, N.A.
-------------------------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A., as successor in interest to XXXXX
FARGO BANK WEST, N.A.,
by: /s/ Xxxxx Fargo Bank, N.A.
-------------------------------------------------------
Name:
Title:
6
THE CHASE MANHATTAN BANK, individually
and as Syndication Agent,
by: /s/ The Chase Manhattan Bank
-------------------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
by: /s/ Bank of America
-------------------------------------------------------
Name:
Title:
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND,
by: /s/ The Governor and Company of the Bank of Ireland
-------------------------------------------------------
Name:
Title:
by: /s/ The Governor and Company of the Bank of Ireland
-------------------------------------------------------
Name:
Title:
BANK OF NEW YORK,
by: /s/ Bank of New York
-------------------------------------------------------
Name:
Title:
7
CREDIT SUISSE FIRST BOSTON,
by: /s/ Credit Suisse First Boston
-------------------------------------------------------
Name:
Title:
by: /s/ Credit Suisse First Boston
-------------------------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
by: /s/ U.S. Bank National Association
-------------------------------------------------------
Name:
Title:
FLEET NATIONAL BANK,
by: /s/ Fleet National Bank
-------------------------------------------------------
Name:
Title:
HSBC,
by: /s/ HSBC
-------------------------------------------------------
Name:
Title:
THE ROYAL BANK OF SCOTLAND plc,
by: /s/ The Royal Bank of Scotland plc
-------------------------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
by: /s/ State Street Bank and Trust Company
-------------------------------------------------------
Name:
Title:
8
UMB, N.A.,
by: /s/ UMB, N.A.
-------------------------------------------------------
Name:
Title:
9
