Exhibit 4.2
EXECUTION COPY
NOTE
New York, New York
September 1, 2009
FOR VALUE RECEIVED, the undersigned,
VIRTUS INVESTMENT PARTNERS, INC., a Delaware corporation (the
“ Borrower ”), hereby promises to pay to the
order of PNC BANK, NATIONAL ASSOCIATION (the “ Lender
”) the unpaid principal amount of the Loans made by the
Lender to the Borrower, in the amounts and at the times set forth
in the Credit Agreement, dated as of September 1, 2009, among
the Borrower, the Lenders party thereto, and The Bank of New York
Mellon, as Administrative Agent and as Issuing Bank, (as the same
may be amended, supplemented or otherwise modified from time to
time, the “ Credit Agreement ”) and to pay
interest from the date hereof on the principal balance of such
Loans from time to time outstanding at the rate or rates and at the
times set forth in the Credit Agreement, in each case at the office
of the Administrative Agent located at One Wall Street, New York,
New York, or at such other place as the Administrative Agent may
specify from time to time, in lawful money of the United States in
immediately available funds. Terms not otherwise defined herein but
defined in the Credit Agreement are used herein with the same
meanings.
The Loans evidenced by this Note are
prepayable in the amounts, and under the circumstances, and their
respective maturities are subject to acceleration upon the terms,
set forth in the Credit Agreement. This Note is subject to, and
shall be construed in accordance with, the provisions of the Credit
Agreement and is entitled to the benefits and security set forth in
the Loan Documents.
The Lender is hereby authorized to
record on the Schedule annexed hereto, and any continuation sheets
which the Lender may attach hereto, (i)the date of each Loan made
by the Lender to the Borrower, (ii)the Type and amount thereof,
(iii)the interest rate (without regard to the Applicable Margin)
and Interest Period applicable to each Eurodollar Loan, and (iv)the
date and amount of each conversion of, and each payment or
prepayment of the principal of, any such Loan. The entries made on
such Schedule shall be prima facie evidence of the existence and
amounts of the obligations recorded thereon, provided that the
failure to so record or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in
accordance with the terms of the Credit Agreement.
Except as specifically otherwise
provided in the Credit Agreement, the Borrower hereby waives
presentment, demand, notice of dishonor, protest, notice of
protest, and all other demands, protests, and notices in connection
with the execution, delivery, performance, collection, and
enforcement of this Note.
All references to either party in
this Note shall be deemed to include the successors and assigns of
such party. The Borrower shall not have the right to assign its
rights or obligations hereunder or any interest herein (and any
such attempted assignment shall be void), except as expressly
permitted by the Loan Documents. No failure or delay of the Lender
in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps
to enforce such a right or power, preclude any other or further
exercise thereof or the exercise of any other right or
Virtus Investment Partners, Inc. Note
power. Neither this Note nor any provision
hereof may be waived, amended or modified, nor shall any departure
therefrom be consented to, except pursuant to a written agreement
entered into between the Borrower and the Lender with respect to
which such waiver, amendment, modification or consent is to apply,
subject to any consent required in accordance with
Section 10.2 of the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
All communications and notices
hereunder shall be in writing and given as provided in
Section 10.1 of the Credit Agreement.
The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the courts of the State of New York
sitting in New York County and of the United States District Court
for the Southern District of New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating
to this Note or the other Loan Documents, or for recognition or
enforcement of any judgment, and the Borrower hereby irrevocably
and unconditionally agrees that, to the extent permitted by
applicable law, all claims in respect of any such action or
proceeding may be heard and determined in such New York State court
or, to the extent permitted by applicable law, in such Federal
court. The Borrower, and by accepting this Note, the Lender, agrees
that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in
this Note shall affect any right that the Lender may otherwise have
to bring any action or proceeding relating to this Note or the
other Loan Documents against the Borrower, or any of its property,
in the courts of any jurisdiction.
The Borrower, and by accepting this
Note, the Lender, hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to
this Note or the other Loan Documents in any court referred to in
the preceding paragraph hereof. The Borrower, and by accepting this
Note, the Lender, hereby irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such
court.
The Borrower, and by accepting this
Note, the Lender, irrevocably consents to service of process in the
manner provided for notices herein. Nothing herein will affect the
right of the Lender to serve process in any other manner permitted
by law.
THE BORROWER, AND BY ACCEPTING
THIS NOTE, THE LENDER, EACH HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE. THE BORROWER
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE
LENDER HAS
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REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT SUCH LENDER HAS
BEEN INDUCED TO ACCEPT THIS NOTE AND ENTER INTO THE LOAN DOCUMENTS
TO WHICH IT IS A PARTY BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS IN THIS PARAGRAPH.
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VIRTUS
INVESTMENT PARTNERS, INC.
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By:
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Name:
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Michael A.
Angerthal
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Title:
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Executive Vice
President & Chief Financial Officer
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Virtus Investment Partners, Inc. Note
SCHEDULE TO NOTE