CONSENT, WAIVER and AMENDMENT dated
as of October 23, 2002 (this "Amendment"),
among STILWELL FINANCIAL INC., a Delaware
corporation ("Stilwell"), JANUS CAPITAL
CORPORATION, a Colorado corporation ("Janus"
and, together with Stilwell, 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 Amended and Restated 364-Day
Credit Agreement dated as of October 24, 2001 (as amended, supplemented or
otherwise modified from time to time, the "Amended and Restated 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 Amended and Restated 364-Day Agreement, the
"Credit Agreements"), in each case among the Borrowers, the Lenders party
thereto, Wells Fargo Bank West, N.A., as documentation agent, The Chase
Manhattan Bank, as syndication agent, and the Agent. Capitalized terms used but
not otherwise defined herein have the meanings assigned to them in the Credit
Agreements.
The Borrowers have announced that Janus will be merged into
Stilwell, and will be renamed Janus Capital Management Inc., and that its
investment in Nelson may be sold (the "Janus Transaction"), as more particularly
described in the press release attached as Exhibit A. In connection with the
Janus Transaction, the Amended and Restated 364-Day Agreement will be permitted
to expire in accordance with its terms on October 23, 2002, and will not be
extended or renewed and the commitments thereunder will terminate.
The Borrowers have requested that the Lenders consent to the
Janus Transaction and waive and amend certain provisions of the Five-Year
Agreement in connection with the Janus Transaction and the termination of the
Amended and Restated 364-Day Agreement. 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. Consent and Waiver. Effective as of the Amendment
Effective Date (as defined in Section 9 hereof), each of the undersigned Lenders
hereby consents to the Janus Transaction and waives compliance by the Borrowers
with the provisions of Sections 5.01(a) and 6.04 of the Five-Year Agreement to
the extent (but only to the extent) necessary to permit the Borrowers to
consummate the Janus Transaction.
SECTION 2. 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 definitions:
"`Janus Transaction' shall mean the transaction
whereby Janus will be merged into Stilwell and will
be renamed Janus Capital Management Inc., and its
investment in Nelson may be sold."
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"`JCM Inc.' shall mean Janus Capital Management Inc.,
a Delaware corporation, resulting from the merger of
Janus into Stilwell."
"`Merger Date' shall mean the date on which the Janus
Transaction shall be effective."
(b) amending the definition of "Borrower" or "Borrowers" by
adding at the end thereof the words ", 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 JCM Inc."
(c) amending the definition of "Indebtedness" in its entirety to
read as follows:
"`Indebtedness' of any person shall mean, without
duplication, (a) all obligations of such person for
borrowed money, (b) all obligations of such person
evidenced by bonds, debentures, notes, acceptances,
equipment trust certificates or similar instruments,
(c) all obligations of such person issued or assumed
as the deferred purchase price of property or
services other than accounts payable arising in the
ordinary course of such person's business on terms
customary in the trade, (d) all obligations of such
person, whether or not assumed, secured by (or for
which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any
Lien or payable out of the proceeds or production
from property owned or acquired by such person, (e)
Capitalized Lease Obligations of such person, (f) all
Guarantees by such person of Indebtedness of others
and (g) any other obligations or securities (other
than certain stock purchase agreements and
restriction agreements requiring Stilwell to purchase
outstanding capital stock of Janus from minority
stockholders of Janus) which such person is directly
or indirectly obligated to repay, redeem, retire,
extinguish or repurchase on or prior to the Maturity
Date (i) at a fixed or determinable date, whether by
operation of a sinking fund or otherwise, (ii) at the
option of any person other than the issuer thereof or
(iii) upon the occurrence of a condition not solely
within the control of the issuer thereof or obligor
thereon, such as a redemption out of future earnings.
The Indebtedness of any person shall include the
Indebtedness of any other entity (including any
partnership in which such person is a general
partner) to the extent such person is liable therefor
as a result of such person's ownership interest in or
other relationship with such entity, except to the
extent the terms of such Indebtedness provide that
such person is not liable therefor."
(d) 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 JCM Inc."
(e) amending the definition of "Related Subsidiaries" in its
entirety to read as follows:
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"`Related Subsidiaries' shall mean (a) with respect
to Stilwell 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 Stilwell or Janus on or after the Merger
Date, each of the subsidiaries of JCM Inc."
(f) amending the definition of "Stilwell" in its entirety to
read as follows:
"`Stilwell' shall mean Stilwell Financial Inc., a
Delaware corporation, before the Merger Date and, on
and after the Merger Date, shall mean JCM Inc."
(g) deleting the definition of "Janus Stock Purchase Agreement".
(h) deleting the definition of "364-Day Agreement".
SECTION 3. Amendments to Article II. Article II of the Five-
Year Agreement is hereby amended by:
(a) amending Section 2.01 by deleting clauses (b) and (c) in
their entirety and substituting therefor the following:
"(b) prior to the Merger Date, the outstanding amount
of all Loans made by the Lenders to Stilwell exceed
two-thirds of the Available Borrowing Amount, (c)
prior to the Merger Date, the outstanding amount of
all Loans made by the Lenders to Janus exceed
one-third of the Available Borrowing Amount or (d) on
and after the Merger Date, the outstanding amount of
all Loans made by the Lenders exceed the Available
Borrowing Amount."
(b) amending Section 2.03 by deleting the last two sentences of
clause (a) and substituting therefor the following:
"The portion of the Revolving Credit Exposure
attributable to Stilwell at any time prior to the
Merger Date plus the aggregate principal amount of
Competitive Loans to Stilwell outstanding at that
time shall not exceed two-thirds of the Available
Borrowing Amount. The portion of the Revolving Credit
Exposure attributable to Janus at any time prior to
the Merger Date plus the aggregate principal amount
of Competitive Loans to Janus outstanding at such
time shall not exceed one-third of the Available
Borrowing Amount. On and after the Merger Date, the
Revolving Credit Exposure plus the aggregate
principal amount of Competitive Loans outstanding
shall at no time exceed the Available Borrowing
Amount."
(c) amending Section 2.06 by deleting the first sentence of
clause (b) and substituting therefor the following:
"(b) For any day on which the outstanding principal
amount of Loans shall be greater than 33-1/3% of the
sum of the total Commitments under this Agreement,
Stilwell shall pay to the
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Agent for the account of each Lender a utilization fee
(a "Utilization Fee") equal to the Applicable
Percentage on the aggregate amount of each Lender's
outstanding Loans to the Borrowers on such day."
(d) amending Section 2.11 by deleting the first sentence of
clause (b) and substituting therefor the following:
"(b) Each reduction in the Total Commitment hereunder
shall be made (i) ratably among the Lenders in
accordance with their respective Commitments and (ii)
for reductions prior to the Merger Date, ratably
between the Borrowers in accordance with the
percentage of the Total Commitment available to each
Borrower on the date hereof."
(e) amending Section 2.22 by deleting clause (a)(iii) in its
entirety and substituting therefor the following:
"(iii) before the Merger Date, the aggregate
principal amount of all outstanding Loans made to
Janus exceeding one-third of the Available Borrowing
Amount, or on or after the Merger Date, the aggregate
principal amount of all outstanding Loans exceeding
the Available Borrowing Amount."
(f) amending Section 2.24 by deleting the section in its
entirety and substituting therefor the following:
"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 $50,000,000.
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 $150,000,000,000, the
available amount of the Commitments shall be reduced
by $100,000,000.
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 $150,000,000.
(b) In the event and on each occasion that the
aggregate amount of Loans outstanding to the
Borrowers exceeds the then Available Borrowing
Amount, Stilwell 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
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Commitments and (ii) at any time prior to the Merger
Date, 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. Amendment to Section 4.01. Section 4.01 of the Five-
Year Agreement is hereby amended by deleting clause (d) in its entirety and
substituting therefor the following:
"(d) At the time of and immediately after such
Borrowing, extension or increase, as applicable, the
outstanding aggregate principal amount of all Loans
made by the Lenders (i) prior to the Merger Date, to
Stilwell shall not exceed two-thirds of the Available
Borrowing Amount, (ii) prior to the Merger Date, to
Janus shall not exceed one-third of the Available
Borrowing Amount and (iii) on and after the Merger
Date, shall not exceed the Available Borrowing
Amount."
SECTION 5. Amendments to Article V. Article V of the Five-Year
Agreement is hereby amended by:
(a) amending Section 5.01 by deleting clause (b) in its entirety
and substituting therefor the following:
"(b) Stilwell will at all times own, directly or
indirectly, not less than 66-2/3% of the outstanding
voting securities or membership interests, as
appropriate, of each of Berger, Janus, Nelson and
Janus Capital Management LLC, in each case free and
clear of any Liens on such securities or interests,
provided that the foregoing shall not apply to the
ownership of Janus or Nelson on or after the Merger
Date."
(b) amending Section 5.04 by deleting clause (g) in its entirety
and substituting therefor the following:
"(g) [intentionally omitted];"
SECTION 6. Amendments to Article VI. Article VI of the Five-
Year Agreement is hereby amended by:
(a) amending Section 6.01 by deleting the words "and under the
364-Day Agreement" from clause (v).
(b) amending Section 6.02 by deleting clause (i) in its entirety
and substituting therefor the following:
"(i) Liens arising pursuant to certain stock purchase
agreements and restriction agreements requiring
Stilwell to purchase outstanding capital stock of
Janus from minority stockholders of Janus;"
SECTION 7. Amendment to Article VII. Article VII of the Five-
Year Agreement is hereby amended by deleting clause (m) in its entirety and
substituting therefor the following:
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"(m) Stilwell shall cease to own, directly or
indirectly, at least 66-2/3% of the outstanding
voting securities or membership interests, as
appropriate, of any of Berger, Janus, Nelson or Janus
Capital Management LLC, provided that, the foregoing
shall not apply to the ownership of Janus or Nelson
on or after the Merger Date; or"
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 23, 2002, 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, 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, counsel for the Agent.
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(c) The Agent shall have received such other documents,
instruments and certificates as it or its counsel shall reasonably
request.
SECTION 10. 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 11. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 12. 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 13. Expenses. Stilwell 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 & Moore,
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.
STILWELL FINANCIAL INC.,
by: /s/ Daniel Connealy
--------------------------------
Name: Daniel Connealy
Title: VP & CFO
JANUS CAPITAL CORPORATION,
by: /s/ Daniel Connealy
--------------------------------
Name: Daniel Connealy
Title: Vice President
JANUS CAPITAL MANAGEMENT LLC, as
Guarantor,
by: /s/ Loren M. Starr
--------------------------------
Name: Loren M. Starr
Title: Chief Financial Officer
CITIBANK, N.A., individually and as
Administrative Agent and as Swingline
Lender,
by: /s/ Matthew Nicholls
--------------------------------
Name: Matthew Nicholls
Title: Vice President
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
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JPMORGAN CHASE BANK (f/k/a The Chase
Manhattan Bank), individually and as
Syndication Agent,
by: /s/ Marybeth Mullen
--------------------------------
Name: Marybeth Mullen
Title: Vice President
BANK OF AMERICA, N.A.,
by: /s/ Elizabeth W.F. Bishop
--------------------------------
Name: Elizabeth W.F. Bishop
Title: Managing Director
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND,
by:
--------------------------------
Name:
Title:
by:
-----------------------------
Name:
Title:
BANK OF NEW YORK,
by: /s/ Timothy J. Somers
--------------------------------
Name: Timothy J. Somers
Title: Vice President
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CREDIT SUISSE FIRST BOSTON,
by: /s/ Jay Chall
--------------------------------
Name: Jay Chall
Title: Director
by: /s/ Bill O'Daly
--------------------------------
Name: Bill O'Daly
Title: Director
U.S. BANK NATIONAL ASSOCIATION,
by:
--------------------------------
Name:
Title:
FLEET NATIONAL BANK,
by:
-------------------------------
Name:
Title:
HSBC,
by:
--------------------------------
Name:
Title:
THE ROYAL BANK OF SCOTLAND plc,
by: /s/ Diane Ferguson
--------------------------------
Name: Diane Ferguson
Title: Senior Vice President
STATE STREET BANK AND TRUST COMPANY,
by: /s/ John Stankard
--------------------------------
Name: John Stankard
Title: Vice President
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UMB, N.A.,
by: /s/ Terry Dierks
--------------------------------
Name: Terry Dierks
Title: Senior Vice President