EXHIBIT 10.14.7
CONSENT, WAIVER AND AMENDMENT dated as of
October 1, 2003 (this "Amendment"), among JANUS
CAPITAL GROUP INC., a Delaware corporation formerly
known as Stilwell 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,
Wells 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 as
amended hereby.
The Borrower has informed the Lenders that it intends to
exchange 32,300,000 shares of the common stock of DST Systems, Inc. owned by it
for equity of equal value of Output Marketing Services, currently a subsidiary
of DST Systems Inc., with the result that Output Marketing Services (which will
be renamed JCG Partners) will become a wholly owned subsidiary of the Borrower.
The Borrower has requested that the Lenders consent to the
exchange described in the preceding paragraph and to waive and 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 waivers and 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. Amendment of Section 1.01. Section 1.01 of the
Five-Year Agreement is hereby amended as follows:
(a) The following new definitions are inserted in the
appropriate alphabetical order therein:
'"DST Equity Exchange' shall mean the exchange by JCG
Inc. of 32,300,000 shares of the common stock of DST Systems,
Inc. owned by it for equity of equal value of JCG Partners
(currently named "Output Marketing Services"), a subsidiary of
DST Systems Inc., with the result that JCG Partners will
become a wholly owned subsidiary of the Borrower.
'JCG Partners' shall mean Output Marketing Services,
currently a subsidiary of DST Systems Inc., which after the
DST Equity Exchange will be renamed JCG Partners and will be a
wholly owned subsidiary of the Borrower.
'New York Complaint' shall mean the complaint filed
in the Supreme Court of the State of New York, County of New
York, on September 3, 2003, on behalf of the State of New
York, by the Attorney General of the State of New York,
against Canary Capital Partners, LLC, Canary Investment
Management, LLC, Canary Capital Partners, Ltd. and Edward J.
Stern."
(b) The definition of "Applicable Percentage" is hereby
amended and restated as follows:
'"Applicable Percentage' shall mean on any date, with
respect to the Loans comprising any Eurodollar Standby
Borrowing, the Facility Fee, or the Utilization Fee, as the
case may be, the applicable percentage set forth in the table
below:
Eurodollar Spread Facility Fee Utilization Fee
- ----------------- ------------ ---------------
0.500% 0.250% 0.375%
(c) The definition of "Consolidated Net Income" therein is
hereby amended and restated in its entirety as follows:
'"Consolidated Net Income' shall mean, for any
period, the net income of Stilwell and the Consolidated
Subsidiaries on a consolidated basis for such period,
determined in accordance with GAAP, but without giving effect
to (a) any extraordinary gains, (b) any gains during such
period relating to the sale, transfer or other disposition of
(i) any assets of Stilwell or any subsidiary (other than in
the ordinary course of business) or (ii) investments in any
subsidiary or Affiliate of Stilwell or the Consolidated
Subsidiaries, including, without limitation, DST Systems,
Nelson, and Bay Isle Financial LLC, a Delaware limited
liability company, (c) any costs, expenses or losses incurred
during such period (which in the aggregate for all such
periods shall not exceed $200,000,000) consisting of or
relating to (i) the sale, transfer or other disposition, in
whole or in part, of any subsidiary or Affiliate of Stilwell
or the Consolidated Subsidiaries, (ii) any exchange,
repayment, prepayment, purchase or redemption by Stilwell or
any Subsidiary of the outstanding Indebtedness of Stilwell,
(iii) any fines, penalties, damages, or restitution payments
directly related to the New York Complaint, (iv) any non-cash
compensation expenses related to the amortization of
restricted stock grants of Stilwell, and (v) the cost of tax
opinion insurance obtained in connection with the DST Equity
Exchange and (d) any income, gains, costs, expenses, losses or
other items attributable to DST Systems (but including all
such items attributable to JCG Partners after the
effectiveness of the DST Equity Exchange). It is agreed that
any determination of Consolidated EBITDA for a period of four
fiscal quarters ending on or after September 30, 2003 will
employ the above definition with respect to all fiscal
quarters included in such period."
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(d) The definition of "Liquid Assets" therein is hereby
amended and restated in its entirety as follows:
'"Liquid Assets' shall mean cash, cash equivalents
and other readily marketable securities (it being understood
that any equity of JCG Inc. held by any Related Subsidiary
shall not qualify as 'Liquid Assets' hereunder), the value of
which shall be deemed to be the amount of cash which would be
realized upon prompt liquidation of such securities."
(e) The definition of "Maturity Date" therein is hereby
amended and restated in its entirety as follows:
'"Maturity Date' shall mean October 23, 2004."
SECTION 2. Amendment of Article V. Article V of the Five-Year
Agreement is hereby amended by adding the following new Section 5.09 at the end
thereof:
"SECTION 5.09. Maintenance of JCG Partners as a
Wholly Owned Subsidiary. Such Borrower will cause JCG
Partners, at all times after the DST Equity Exchange, to be
and remain a direct or indirect wholly owned subsidiary of JCG
Inc."
SECTION 3. Amendment of Article VI. Article VI of the
Five-Year Agreement is hereby amended as follows:
(a) Section 6.01(a)(iv) is hereby amended and restated as
follows:
"(iv) other Indebtedness not secured by any Liens and
incurred in the ordinary course of business and refinancings
thereof, in an aggregate principal amount at any one time
outstanding not in excess of $10,000,000;".
(b) Section 6.01(a)(xi) is hereby amended and restated as
follows:
"(xi) other Indebtedness of Stilwell and its Related
Subsidiaries that is not secured by any Lien in an aggregate
principal amount at any time outstanding that does not exceed
$856,000,000 minus the aggregate principal amount of any
Indebtedness outstanding under this paragraph that shall have
been repaid, prepaid, redeemed, purchased or defeased by
Stilwell or any other Related Subsidiary, including any such
Indebtedness of either Borrower or any Related Subsidiary of
either Borrower originally owed to third parties and purchased
by either Borrower or any Related Subsidiary of either
Borrower (other, in each case, than Indebtedness repaid,
prepaid, redeemed, purchased or defeased with the proceeds of
new Indebtedness issued for the specific purpose of providing
funds for any such repayment, prepayment, redemption or
purchase); provided that with respect to any such Indebtedness
issued or incurred to extend, renew or refinance existing
Indebtedness, the principal thereof is not by its terms
required to be repaid, prepaid, redeemed, purchased or
defeased, in whole or in part, at the option of any holder
thereof or on any date prior to the Maturity Date; provided
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further that the incurrence of such Indebtedness would not
cause a Default or an Event of Default under any other Section
of this Agreement."
(c) The following new Sections 6.09 and 6.10 are added at the
end thereof:
"SECTION 6.09. Limitation on Investments in JCG
Partners. Such Borrower shall not make, or permit any Related
Subsidiary to make, any loans, advances or capital
contributions to, or other investments of any kind in, JCG
Partners or any of its subsidiaries, except that JCG Inc. may
make regularly scheduled payments of interest and principal in
respect of any Indebtedness of JCG Inc. that shall have been
purchased or otherwise acquired by JCG Partners from third
parties.
SECTION 6.10. Conduct of Business of JCG Partners.
Such Borrower shall not permit JCG Partners to engage in any
business or business activity other than those in which the
Borrower, the Related Subsidiaries or JCG Partners are engaged
as of the Amendment Effective Date (as such term is defined in
the Consent, Waiver and Amendment dated as of October 1, 2003,
to this Agreement) and other businesses and business
activities reasonably related thereto."
SECTION 4. Waiver of Section 6.04. Effective as of the
Amendment Effective Date (as defined below), each of the undersigned Lenders
hereby consents to the DST Equity Exchange and waives compliance by the Borrower
with the provisions of Section 6.04(c)(iv) of the Five-Year Agreement to the
extent (but only to the extent) necessary to permit the Borrower to consummate
the DST Equity Exchange.
SECTION 5. Schedules 3.07 and 3.08. Schedules 3.07 and 3.08 to
the Five-Year Agreement are hereby deleted and Schedules 3.07 and 3.08 hereto
are inserted in their place.
SECTION 6. 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, after giving effect to
this Amendment, are true and correct in all material respects with the
same effect as if made on the Amendment Effective Date, 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
and waived by this Amendment.
(c) This Amendment has been duly executed and delivered by the
Borrower. The Five-Year Agreement, as amended and waived 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.
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(d) As of the Amendment Effective Date, no Event of Default or
Default has occurred and is continuing.
SECTION 7. Conditions to Effectiveness. This Amendment shall
become effective as of the date first above written (the "Amendment Effective
Date") on the date of the satisfaction in full of the following conditions
precedent:
(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 &
Moore LLP, counsel for the Agent.
(c) The Agent shall have received such other documents,
instruments and certificates as it or its counsel shall reasonably
request.
(d) The DST Equity Exchange shall have been, or shall on the
Amendment Effective Date be, completed.
SECTION 8. 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 9. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. 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 11. 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 &
Moore LLP, 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/ Loren M. Starr
-------------------------------------
Name: Loren M. Starr
Title: VP, Chief Financial Officer
JANUS CAPITAL MANAGEMENT LLC, as
Guarantor,
by: /s/ Matthew R. Luoma
-------------------------------------
Name: Matthew R. Luoma
Title: Treasurer
CITIBANK, N.A., individually and as
Administrative Agent and as
Swingline Lender,
by: /s/ Matthew Nicholls
-------------------------------------
Name: Matthew Nicholls
Title: Director
WELLS FARGO BANK, N.A., as successor in
interest to WELLS FARGO BANK WEST, N.A.,
by: /s/ Randall Schmidt
-------------------------------------
Name: Randall Schmidt
Title: Vice President
JPMORGAN CHASE BANK, individually and
as Syndication Agent,
by: /s/ Marybeth Mullen
-------------------------------------
Name: Marybeth Mullen
Title: Vice President
BANK OF AMERICA, N.A.,
by: /s/ Sean W. Cassidy
------------------------------------
Name: Sean W. Cassidy
Title: Principal
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND,
by:
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Name:
Title:
by:
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Name:
Title:
THE BANK OF NEW YORK,
by: /s/ William M. Stanton
------------------------------------
Name: William M. Stanton
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
by: /s/ Jay Chall
------------------------------------
Name: Jay Chall
Title: Director
by: /s/ Barbara Wong
------------------------------------
Name: Barbara Wong
Title: Associate
U.S. BANK NATIONAL ASSOCIATION,
by: /s/ John P. Mills
------------------------------------
Name: John P. Mills
Title: Vice President
FLEET NATIONAL BANK,
by: /s/ Robert McClelland
------------------------------------
Name: Robert McClelland
Title: Director
HSBC,
by: /s/ Scott H. Buitekant
------------------------------------
Name: Scott H. Buitekant
Title: First Vice President
THE ROYAL BANK OF SCOTLAND plc,
by:
------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
by: /s/ Karen A. Gallagher
------------------------------------
Name: Karen A. Gallagher
Title: Vice President
UMB, N.A.,
by: /s/ Terry Dierks
------------------------------------
Name: Terry Dierks
Title: Senior Vice President