EXHIBIT 10.14.6
SIXTH AMENDMENT dated as of March 28, 2003
(this "Amendment"), among JANUS CAPITAL GROUP INC., a
Delaware corporation formerly known as Xxxxxxxx
Financial Inc. (the "Borrower"), 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 the Five-Year Credit Agreement dated
December 7, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Five-Year Agreement") among the Borrower, the Lenders party thereto,
Xxxxx Fargo Bank West, N.A., as documentation agent, JPMorgan Chase Bank, as
syndication agent, and the Agent. Capitalized terms used but not otherwise
defined herein have the meanings assigned to them in the Five-Year Agreement.
The Borrower has requested that the Lenders amend certain
provisions of the Five-Year Agreement as set forth in this Amendment and the
Lenders whose signatures appear below, constituting at least the Required
Lenders, are willing to agree to such amendments on the terms and subject to the
conditions set forth herein.
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 I. Section 1.01 of the
Five-Year Agreement is hereby amended as follows:
(a) by adding in the appropriate alphabetical order therein
the following new definition:
"'JCG Inc.' shall mean Janus Capital Group Inc., a
Delaware corporation formerly known as Xxxxxxxx
Financial Inc."
(b) amending the definition of "Borrower" or "Borrowers" in
its entirety to read as follows:
"'Borrower' or 'Borrowers' shall mean Xxxxxxxx and/or
Janus, as applicable, in connection with actions or
dates before the Merger Date and, in connection with
actions or dates on and after the Merger Date, shall
mean JCG Inc."
(c) amending the definition of "Janus" in its entirety to read
as follows:
"'Janus' shall mean Janus Capital Corporation, a
Colorado corporation, before the Merger Date and, on
and after the Merger Date, shall mean JCG Inc."
(d) amending the definition of "Janus Transaction" in its
entirety to read as follows:
"'Janus Transaction' shall mean the transaction
whereby Janus will be merged into Xxxxxxxx and will
be renamed Janus Capital Group Inc., and its
investment in Xxxxxx may be sold."
(e) amending the definition of "Related Subsidiaries" in its
entirety to read as follows:
"'Related Subsidiaries' shall mean (a) with respect
to Xxxxxxxx prior to the Merger Date, each of its
subsidiaries, other than Janus and each of Janus'
subsidiaries, (b) with respect to Janus prior to the
Merger Date, each of its subsidiaries, and (c) with
respect to Xxxxxxxx or Xxxxx on or after the Merger
Date, each of the subsidiaries of JCG Inc."
(f) amending the definition of "Xxxxxxxx" in its entirety to
read as follows:
"'Xxxxxxxx' shall mean Xxxxxxxx Financial Inc., a
Delaware corporation, before the Merger Date and, on
and after the Merger Date, shall mean JCG Inc."
(g) deleting the definition of "JCM Inc.".
SECTION 2. Amendment to Section 6.01. Section 6.01(a)(xi) of
the Five-Year Agreement is hereby amended by deleting the reference to
"$1,200,000,000" and replacing it with "$856,000,000".
SECTION 3. Amendment to Section 6.07. Section 6.07 of the
Five-Year Agreement is hereby amended by deleting in its entirety clause (a) and
replacing it with the following:
"(a) permit the Leverage Ratio on any date during any
period set forth below to be in excess of the ratio
set forth below opposite the period during which such
date occurs:
Period Ratio
------ -----
Through 3/30/03 2.00 to 1.00
3/31/03 through 9/30/03 2.75 to 1.00
10/1/03 and thereafter 2.00 to 1.00"
SECTION 4. Representations, Warranties and Agreements. The
Borrower hereby represents and warrants to and agrees with each Lender and the
Agent that:
(a) The representations and warranties of the 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) The 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 the Borrower of
this Amendment and the performance by the 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 the
Borrower, (y) any order of any Governmental Authority or (z) any
provision of any indenture, agreement or other instrument to which the
Borrower is a
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party or by which it or any of its 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 the
Borrower.
(d) This Amendment has been duly executed and delivered by the
Borrower. The Five-Year Agreement, as amended by this Amendment,
constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the 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 principles
of equity.
(e) As of the Amendment Effective Date, no Event of Default or
Default has occurred and is continuing.
SECTION 5. 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
the Borrower, Janus Capital Management LLC, 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 6. Amendment Fees. In consideration of the consent
provided by the consenting Lenders, the Borrower agrees 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 March 28, 2003, an executed
counterpart of this Amendment, an amendment fee (the "Amendment Fee") in an
amount equal to .075% of such Lender's Commitment (whether used or unused) under
the Five-Year Agreement as of the Amendment Effective Date; provided that the
Borrower shall have no liability for any such Amendment Fee if this Amendment
does not become effective.
SECTION 7. 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 8. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
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SECTION 9. 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 10. Expenses. The 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.
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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.
JANUS CAPITAL GROUP INC.,
by: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Controller
JANUS CAPITAL MANAGEMENT LLC,
as Guarantor,
by: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
CITIBANK, N.A., individually and as
Administrative Agent and as
Swingline Lender,
by: /s/ X. Xxxxxxxx
----------------------------------
Name: X. Xxxxxxxx
Title: Director
XXXXX FARGO BANK, N.A., as successor in
interest to XXXXX FARGO BANK WEST, N.A.,
by: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
JPMORGAN CHASE BANK (f/k/a The Chase
Manhattan Bank), individually and as
Syndication Agent,
by: /s/ Xxxxxxxx Xxxxxx
----------------------------------
Name: Vice President
Title: JPMorgan Chase Bank
BANK OF AMERICA, N.A.,
by: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Principal
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND,
by:
----------------------------------
Name:
Title:
by:
----------------------------------
Name:
Title:
THE BANK OF
NEW YORK,
by: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
by: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: Director
by: /s/ Xxxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Associate
U.S. BANK NATIONAL ASSOCIATION,
by: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
FLEET NATIONAL BANK,
by: /s/ X. XxXxxxxxxx
----------------------------------
Name: X. XxXxxxxxxx
Title: Director
HSBC,
by: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: First Vice President
THE ROYAL BANK OF SCOTLAND plc,
by: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
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
