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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 10-Q


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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2008

OR

o

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from:                             to                            

Commission File Number 001-33761

PZENA INVESTMENT MANAGEMENT, INC.
(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction of incorporation or organization)
  20-8999751
(I.R.S. Employer
Identification No.)

120 West 45th Street
New York, New York

(Address of principal executive offices)

 


10036

(Zip Code)

(212) 355-1600
(Registrant's telephone number including area code)

Not Applicable
(Former name, former address, and former fiscal year if changed since last report)

        Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  ý     No  o

        Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer," and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer  o   Accelerated filer  o   Non-accelerated filer  ý
(Do not check if a smaller reporting company)
  Smaller reporting company  o

        Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes  o     No  ý

        As of November 13, 2008 there were 6,123,494 outstanding shares of the registrant's Class A common stock, par value $0.01 per share.

        As of November 13, 2008 there were 57,950,910 outstanding shares of the registrant's Class B common stock, par value $0.000001 per share.



PZENA INVESTMENT MANAGEMENT, INC.
FORM 10-Q
TABLE OF CONTENTS

 
   
  Page

PART I — FINANCIAL INFORMATION

  1

Item 1.

 

Consolidated Statements of Financial Condition of Pzena Investment Management, Inc. as of September 30, 2008 (unaudited) and December 31, 2007

 

1

 

Consolidated Statements of Operations (unaudited) of Pzena Investment Management, Inc. for the Three and Nine Months Ended September 30, 2008 and September 30, 2007

 

2

 

Consolidated Statements of Cash Flows (unaudited) of Pzena Investment Management, Inc. for the Three and Nine Months Ended September 30, 2008 and September 30, 2007

 

3

 

Consolidated Statements of Changes in Equity (unaudited) of Pzena Investment Management, Inc. for the Nine Months Ended September 30, 2008 and September 30, 2007

 

4

 

Notes to Consolidated Financial Statements (unaudited)

 

5

Item 2.

 

Management's Discussion and Analysis of Financial Condition and Results of Operations

 

30

Item 3.

 

Quantitative and Qualitative Disclosures About Market Risk

 

46

Item 4T.

 

Controls and Procedures

 

47

PART II — OTHER INFORMATION

 

48

Item 1.

 

Legal Proceedings

 

48

Item 1A.

 

Risk Factors

 

48

Item 2.

 

Unregistered Sales of Equity Securities and Use of Proceeds

 

64

Item 3.

 

Defaults Upon Senior Securities

 

64

Item 4.

 

Submission of Matters to a Vote of Security Holders

 

64

Item 5.

 

Other Information

 

65

Item 6.

 

Exhibits

 

65



EXPLANATORY NOTE

        On October 30, 2007, Pzena Investment Management, Inc. (the "Company") consummated an initial public offering of 6,100,000 shares of its Class A common stock in which it received net proceeds of approximately $98.9 million that it used to purchase 6,100,000 membership units of Pzena Investment Management, LLC, representing 9.5% of the then outstanding membership units of Pzena Investment Management, LLC. Concurrently with the consummation of this initial public offering, (i) the operating agreement of Pzena Investment Management, LLC (the "Operating Agreement") was amended and restated such that, among other things, the Company became the sole managing member of Pzena Investment Management, LLC and (ii) related reorganization transactions were consummated. Accordingly, as of and subsequent to October 30, 2007, (i) the Company will consolidate the financial results of Pzena Investment Management, LLC with its own and reflect the remaining membership interest in Pzena Investment Management, LLC as a non-controlling interest in its consolidated financial statements, and (ii) the Company's income will be generated by its economic interest in Pzena Investment Management, LLC's net income. As of September 30, 2008, the holders of Class A common stock (through the Company) and the holders of Class B units of the operating company held approximately 9.6% and 90.4%, respectively, of the economic interests in the operations of the business. Therefore, this Quarterly Report on Form 10-Q presents the following financial statements:

        "We," "us," "our," and the "Company" refer to: (i) Pzena Investment Management, Inc. and its subsidiaries, including Pzena Investment Management, LLC and all of its subsidiaries, following the consummation of the above-referenced initial public offering, amendment and restatement of the Operating Agreement and related reorganization transactions on October 30, 2007, and (ii) to Pzena Investment Management, LLC and all of its subsidiaries prior to the consummation of these transactions. The "operating company" refers to Pzena Investment Management, LLC.


CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

        This Quarterly Report on Form 10-Q contains forward-looking statements. Forward-looking statements provide our current expectations, or forecasts, of future events. Forward-looking statements include statements about our expectations, beliefs, plans, objectives, intentions, assumptions and other statements that are not historical facts. Words or phrases such as "anticipate," "believe," "continue," "ongoing," "estimate," "expect," "intend," "may," "plan," "potential," "predict," "project" or similar words or phrases, or the negatives of those words or phrases, may identify forward-looking statements, but the absence of these words does not necessarily mean that a statement is not forward-looking.

        Forward-looking statements are subject to known and unknown risks and uncertainties and are based on potentially inaccurate assumptions that could cause actual results to differ materially from those expected or implied by the forward-looking statements. Our actual results could differ materially from those anticipated in forward-looking statements for many reasons, including the factors described in Item 1A, "Risk Factors" in Part II of this Quarterly Report on Form 10-Q. Accordingly, you should not unduly rely on these forward-looking statements, which speak only as of the date of this Quarterly Report on Form 10-Q. We undertake no obligation to publicly revise any forward-looking statements to

ii



reflect circumstances or events after the date of this Quarterly Report on Form 10-Q, or to reflect the occurrence of unanticipated events. You should, however, review the factors and risks we describe in the reports we will file from time to time with the SEC after the date of this Quarterly Report on Form 10-Q.

        Forward-looking statements include, but are not limited to, statements about:

        The reports that we file with the SEC, accessible on the SEC's website at www.sec.gov , identify additional factors that can affect forward-looking statements.

iii


PART I. FINANCIAL INFORMATION

Item 1.    Financial Statements


PZENA INVESTMENT MANAGEMENT, INC.

CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION

(in thousands, except share and per-share amounts)

 
  As of  
 
  September 30,
2008
  December 31,
2007
 
 
  (unaudited)
   
 

ASSETS

             
 

Cash and Cash Equivalents

  $ 31,760   $ 27,184  
 

Due from Broker

    31     268  
 

Advisory Fees Receivable

    20,612     26,061  
 

Investments in Marketable Securities, at Fair Value

    30,940     27,465  
 

Receivable from Related Parties

    406     351  
 

Other Receivables

    325     1,040  
 

Prepaid Expenses and Other Assets

    1,028     881  
 

Deferred Tax Assets

    3,840     68,233  
 

Property and Equipment, Net of Accumulated Depreciation of $1,780 and $1,412, respectively

    2,954     3,163  
           
     

TOTAL ASSETS

  $ 91,896   $ 154,646  
           

LIABILITIES AND EQUITY

             
 

Liabilities:

             
   

Accounts Payable and Accrued Expenses

  $ 15,173   $ 8,542  
   

Securities Sold Short, at Fair Value

    3,393     1,028  
   

Due to Broker

    5,300     4,101  
   

Dividends Payable

    306     7,045  
   

Debt

    47,000     60,000  
   

Liability to Selling Shareholders

    4,650     58,391  
   

Other Liabilities

    1,431     1,105  
           
     

TOTAL LIABILITIES

    77,253     140,212  
 

Non-Controlling Interests

   
16,161
   
16,355
 
 

Equity:

             
   

Preferred Stock (Par Value $0.01; 200,000,000 Shares Authorized; None Outstanding)

         
   

Class A Common Stock (Par Value $0.01; 750,000,000 Shares Authorized; 6,123,494 and 6,111,118 Shares Issued and Outstanding in 2008 and 2007, respectively)

    61     61  
   

Class B Common Stock (Par Value $0.000001; 750,000,000 Shares Authorized; 57,950,910 and 57,937,910 Shares Issued and Outstanding in 2008 and 2007, respectively)

         
   

Additional Paid-In Capital

    7,123     (2,043 )
   

Retained Earnings

    (8,702 )   61  
           
     

TOTAL EQUITY

    (1,518 )   (1,921 )
           
     

TOTAL LIABILITIES AND EQUITY

  $ 91,896   $ 154,646  
           

See accompanying notes to consolidated financial statements

1



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS

(in thousands, except share and per-share amounts)

 
  For the Three Months Ended
September 30,
  For the Nine Months Ended
September 30,
 
 
  2008   2007   2008   2007  

REVENUE

  $ 25,072   $ 40,217   $ 83,389   $ 112,355  
                   

EXPENSES

                         

Compensation and Benefits Expense

    8,160     8,807     25,773     121,213  

General and Administrative Expenses

    2,626     2,958     8,321     7,587  
                   
 

TOTAL OPERATING EXPENSES

    10,786     11,765     34,094     128,800  
                   

Operating Income/(Loss)

    14,286     28,452     49,295     (16,445 )
                   

OTHER INCOME/(EXPENSE)

                         

Interest Income

    256     389     682     954  

Interest Expense

    (777 )   (798 )   (2,814 )   (798 )

Dividend Income, Net

    217     187     828     458  

Realized and Unrealized Loss, Net on Marketable Securities and Securities Sold Short

    (4,075 )   (1,218 )   (10,955 )   (263 )

Equity in Loss of Affiliates

        (148 )       (3 )

Other

    53,704     (33 )   53,716     (8 )
                   
 

Total Other Income/(Expense)

    49,325     (1,621 )   41,457     340  

Income/(Loss) Before Income Taxes and Non-Controlling Interests

   
63,611
   
26,831
   
90,752
   
(16,105

)

Provision for Income Taxes

   
63,964
   
1,269
   
66,962
   
3,876
 

Non-Controlling Interests

    8,357     (711 )   30,900     (74 )
                   

Income/(Loss) Before Interest on Mandatorily Redeemable Units

    (8,710 )   26,273     (7,110 )   (19,907 )

Interest on Mandatorily Redeemable Units

   
   
   
   
16,575
 
                   

Net Income/(Loss)

 
$

(8,710

)

$

26,273
 
$

(7,110

)

$

(36,482

)
                   

Net Loss for Basic Earnings per Share

 
$

(8,710

)
     
$

(7,110

)
     

Basic Earnings per Share

  $ (1.42 )       $ (1.16 )      

Basic Weighted Average Shares Outstanding

    6,123,494           6,122,229        

Net Loss for Diluted Earnings per Share

 
$

(8,710

)
     
$

(7,110

)
     

Diluted Earnings per Share

  $ (1.42 )       $ (1.16 )      

Diluted Weighted Average Shares Outstanding

    6,123,494           6,122,229        

See accompanying notes to consolidated financial statements

2



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

 
  For the Three Months Ended
September 30,
  For the Nine Months Ended
September 30,
 
 
  2008   2007   2008   2007  

OPERATING ACTIVITIES

                         
 

Net Income/(Loss)

  $ (8,710 ) $ 26,273   $ (7,110 ) $ (36,482 )
   

Adjustments to Reconcile Net Income/(Loss) to Cash

                         
   

Provided by Operating Activities:

                         
     

Depreciation

    135     109     368     267  
     

Non-Cash Compensation

    272         905     82,887  
     

Non-Cash Interest on Mandatorily Redeemable Units

                  (2,420 )
     

Director Share Grant

            140      
     

Realized and Unrealized Loss, Net on Marketable Securities and Securities Sold Short

    4,075     1,219     10,955     264  
     

Non-Controlling Interests

    8,357     (711 )   30,900     (74 )
     

Equity in Losses of Affiliates

        148         3  
     

Write-down of Liability to Selling Shareholders

    (53,337 )       (53,337 )    
     

Deferred Income Taxes

    63,165     (48 )   64,229     (42 )
   

Changes in Operating Assets and Liabilities:

                         
     

Advisory Fees Receivable

    (115 )   (377 )   5,449     (1,214 )
     

Due from Broker

    58     114     237     852  
     

Restricted Cash

        (23 )       (60 )
     

Prepaid Expenses and Other Assets

    (588 )   (1,086 )   569     (2,238 )
     

Due to Broker

    1,844     (42 )   1,199     (2,740 )
     

Accrued Expenses, Accounts Payable and Other Liabilities

    2,969     6,082     6,253     14,332  
     

Purchases of Marketable Securities and

                         
       

Securities Sold Short

    (5,990 )   (10,704 )   (28,133 )   (20,209 )
     

Proceeds from Sale of Marketable Securities and

                         
       

Securities Sold Short

    4,211     3,608     16,067     13,051  
                   
 

Net Cash Provided by Operating Activities

    16,346     24,562     48,691     46,177  

INVESTING ACTIVITIES

                         
   

Receivable from Related Parties

    (87 )   7     (55 )   83  
   

Purchases of Property and Equipment

    (76 )   (81 )   (160 )   (1,535 )
                   
 

Net Cash Used in Investing Activities

    (163 )   (74 )   (215 )   (1,452 )

FINANCING ACTIVITIES

                         
   

Contributions from Members for Option Exercise

                3,609  
   

Contributions from Non-Controlling Interests

    149     9,750     7,082     11,971  
   

Contribution from Shareholder

    172         172      
   

Distributions to Non-Controlling Interests

    (83 )   (5,612 )   (1,178 )   (7,679 )
   

Debt Proceeds

        60,000         60,000  
   

Debt Repayment

    (10,000 )       (13,000 )    
   

Dividends

    (674 )       (2,018 )    
   

Distributions to Members

    (11,194 )   (68,546 )   (34,958 )   (113,455 )
                   
 

Net Cash Used in Financing Activities

    (21,630 )   (4,408 )   (43,900 )   (45,554 )
                   

NET CHANGE IN CASH

  $ (5,447 ) $ 20,080   $ 4,576   $ (829 )
                   

CASH AND CASH EQUIVALENTS—Beginning of Period

  $ 37,207   $ 10,011   $ 27,184   $ 30,920  
 

Net Change in Cash

    (5,447 )   20,080     4,576     (829 )
                   

CASH AND CASH EQUIVALENTS—End of Period

  $ 31,760   $ 30,091   $ 31,760   $ 30,091  
                   

Supplementary Cash Flow Information:

                         
 

Interest Paid:

                         
   

On Mandatorily Redeemable Units

  $   $   $   $ 18,995  
                   
   

Other

  $ 1,450   $ 61   $ 3,464   $ 61  
                   
 

Income Taxes Paid

  $ 805   $ 1,388   $ 3,847   $ 4,038  
                   

See accompanying notes to consolidated financial statements

3


PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)
UNAUDITED CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY
(in thousands, except share and per-share amounts)

 
  Capital
Units
  Shares of
Class A
Common
Stock
  Shares of
Class B
Common
Stock
  Members'
Capital
  Class A
Common
Stock
  Additional
Paid-In
Capital
  Retained
Earnings
  Excess
of Liabilities
Over Assets
  Total  

Balance at December 31, 2007

        6,111,118     57,937,910   $   $ 61   $ (2,043 ) $ 61   $   $ (1,921 )

Issuance of Class A Common Stock

        12,376                 11             11  

Issuance of Class B Common Stock

            13,000                          

Net Loss

                            (7,110 )       (7,110 )

Capital Contribution

                        172             172  

Amortization of Deferred Compensation

                        42             42  

Equity Effect of Operating Company Net Deficit on Non-Controlling Interests

                        8,941             8,941  

Class A Cash Dividends Paid ($0.22 per share)

                            (1,347 )         (1,347 )

Class A Cash Dividends Declared ($0.05 per share)

                            (306 )       (306 )
                                       

Balance at September 30, 2008

        6,123,494     57,950,910   $   $ 61   $ 7,123   $ (8,702 ) $   $ (1,518 )
                                       

Balance at December 31, 2006

   
   
   
 
$

 
$

 
$

 
$

 
$

(729,966

)

$

(729,966

)

Net Loss Before Interest on Mandatorily Redeemable Units

                                (36,482 )   (36,482 )

Interest on Mandatorily Redeemable Units

                                     

Amortization of Deferred Compensation

                                1,950     1,950  

Reclassification of Liabilities to Capital Units

    63,778,720             875,096             (816,140 )   816,140     875,096  

Unit Forfeiture

    (7,500 )                                

Option Excerise

    266,690             3,609                     3,609  

Distribution to Members

                (113,455 )                   (113,455 )
                                       

Balance at September 30, 2007

    64,037,910           $ 765,250   $   $   $ (816,140 ) $ 51,642   $ 752  
                                       

See accompanying notes to consolidated financial statements

4



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements

Note 1—Organization

        The Company functions as the holding company through which the business of its operating company, Pzena Investment Management, LLC, is conducted. The Company was incorporated in the State of Delaware on May 8, 2007. On May 10, 2007, the Company issued 100 shares of its common stock for $100 to Richard S. Pzena, the sole director of the Company as of that date. On October 30, 2007, the Company consummated an initial public offering of 6,100,000 shares of its Class A common stock, par value $0.01 per share, for net proceeds of approximately $98.9 million, after payment of underwriting discounts and offering expenses. These net proceeds were used to purchase 6,100,000 membership units of Pzena Investment Management, LLC, representing 9.5% of its then outstanding membership units, from its two outside investors and one former employee. Concurrently with the consummation of the Company's initial public offering, the Operating Agreement of Pzena Investment Management, LLC (the "Operating Agreement") was amended and restated such that, among other things, the Company became the sole managing member of Pzena Investment Management, LLC. The acquisition of the operating company's membership interests by the Company has been treated as a reorganization of entities under common control pursuant to the guidance set forth in Financial Accounting Standards Board Technical Bulletin No. 85-5, Issues Relating to Accounting for Business Combinations ("FTB 85-5"). Accordingly, the net assets assumed by the Company through the offering have been reported at Pzena Investment Management, LLC's historical cost basis. As a result of these transactions, as of and subsequent to October 30, 2007, (i) the Company has consolidated the financial results of Pzena Investment Management, LLC with its own and reflected the membership interest in it that it does not own as a non-controlling interest in its consolidated financial statements, and (ii) the Company's income will be generated by its economic interest in Pzena Investment Management, LLC's net income. Reported results for the periods prior to October 30, 2007 reflect solely the operations of Pzena Investment Management, LLC.

        Pzena Investment Management, LLC is an investment adviser which is registered under the Investment Advisers Act of 1940 and is headquartered in New York, New York. As of September 30, 2008, the Company managed assets in a variety of value-oriented investment strategies across a wide range of market capitalizations in both U.S. and international capital markets.

        The Company, through its investment in its operating company, has consolidated the results of operations and financial condition of the following private investment partnerships as of September 30, 2008:

Entity   Type of Entity (Date of Formation)   Ownership at
September 30,
2008
 

Pzena Large Cap Value Fund

  Massachusetts Trust (11/1/2002)     99.6%  

Pzena Large Cap Value Fund II

  Massachusetts Trust (8/1/2006)     99.9%  

Pzena International Value Service

  Delaware Limited Liability Company (12/22/2003)     2.2%  

Pzena Global Value Service

  Delaware Limited Liability Company (12/22/2003)     0.5%  

Pzena Mega Cap Value Fund

  Massachusetts Trust (2/23/2007)     99.9%  

Pzena Value Partners

  Limited Partnership (1/22/2008)     16.7%  

Pzena Emerging Markets Country Value Service

  Delaware Limited Liability Company (12/28/2007)     99.9%  

Pzena Emerging Markets Focused Value Service

  Delaware Limited Liability Company (12/28/2007)     99.9%  

        Pursuant to its Operating Agreement, the operating company will continue until December 31, 2026, unless a terminating event, as defined in the Operating Agreement, occurs prior to this date. Operating company members are not liable for repayment, satisfaction or discharge of any debts, liabilities or obligations of the operating company, except to the extent of their capital accounts.

5



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 2—Significant Accounting Policies

Basis of Presentation:

        The consolidated financial statements are prepared in conformity with U.S. generally accepted accounting principles and related Securities and Exchange Commission rules and regulations. The Company's policy is to consolidate all majority-owned subsidiaries in which it has a controlling financial interest and variable interest entities where the Company is deemed to be the primary beneficiary ("Consolidated Subsidiaries"). Pursuant to the guidance of Emerging Issues Task Force Issue No. 04-5, Determining Whether a General Partner, or the General Partners as a Group, Controls a Limited Partnership or Similar Entity When the Limited Partners Have Certain Rights ("EITF 04-5"), the Company also consolidates non-variable-interest entities in which it acts as the general partner or managing member. All of these entities represent private investment partnerships over which the Company exercises or exercised control. Non-controlling interests recorded on the consolidated financial statements of the Company includes the non-controlling interests of the outside investors in each of these entities, as well as those of the operating company. All significant inter-company transactions and balances have been eliminated.

        These consolidated investment partnerships are investment companies under the American Institute of Certified Public Accountants Audit and Accounting Guide for Investment Companies (the "AICPA Guide"). The Company has retained the specialized accounting for these partnerships pursuant to Emerging Issues Task Force Issue No. 85-12, Retention of Specialized Accounting for Investments in Consolidation ("EITF 85-12"). Thus, the Company reports the investment partnerships' investments in marketable securities and securities sold short at fair value, with net realized and unrealized gains and losses reported in earnings in the consolidated statements of operations.

        Non-controlling interests in the operations of the Company's consolidated subsidiaries are comprised of the following:

 
  For the Three Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Non-Controlling Interest of Pzena Investment Management, LLC

 
$

10,785
 
$

 

Non-Controlling Interest in Consolidated Subsidiaries

    (2,428 )   (711 )
           
 

Non-Controlling Interests

  $ 8,357   $ (711 )
           

 

 
  For the Nine Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Non-Controlling Interest of Pzena Investment Management, LLC

 
$

36,997
 
$

 

Non-Controlling Interest in Consolidated Subsidiaries

    (6,097 )   (74 )
           
 

Non-Controlling Interests

  $ 30,900   $ (74 )
           

6



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 2—Significant Accounting Policies (Continued)

        As discussed further in Note 15, the Company did not initially record a non-controlling interest associated with the acquisition of its operating company, as the post offering net equity of the operating company was less than zero. Pursuant to the guidance in Emerging Issues Task Force Issue No. 95-7, Implementation Issues Related to the Treatment of Minority Interest in Certain Real Estate Trusts ("EITF 95-7"), an operating company non-controlling interest will be recorded when the initial deficit that existed at acquisition is extinguished.

        The Company acts as the investment manager for four trusts and one offshore investment company, each of which are considered variable-interest entities. All of these entities are vehicles through which the Company offers its Global Value and/or International Value strategies. The Company is not considered the primary beneficiary of any of these entities. Correspondingly, their results of operations and financial condition are not consolidated by the Company. The total net assets of these variable-interest entities were approximately $729.5 million and $902.8 million at September 30, 2008 and December 31, 2007, respectively. The Company is not exposed to losses as a result of its involvement with these entities because it has no direct investment in them.

        Investments in private investment partnerships in which the Company has a non-controlling interest and exercises significant influence are accounted for using the equity method. Such investments, if any, are reflected on the consolidated statements of financial condition as investments in affiliates and are recorded at the amount of capital reported by the respective private investment partnerships. Such capital accounts reflect the contributions paid to, distributions received from, and the equity earnings of, the private investment partnerships. The earnings of these private investment partnerships are included in equity in loss of affiliates in the consolidated statements of operations.

        Prior to March 31, 2007, the operating company's membership units were categorized as either compensatory units or capital units. Because both types of units had features of both debt and equity, the operating company accounted for them pursuant to Statement of Financial Accounting Standards No. 123(R), Share-Based Payment ("FAS 123(R)"), and Statement of Financial Accounting Standards No. 150, Accounting for Certain Financial Instruments With Characteristics of Both Liabilities and Equity ("FAS 150"), as described further below.

        Compensatory units consisted of units that were granted to employees and members for services rendered. Through March 31, 2007, the distributions associated with these units, and the subsequent incremental increase or decrease in their redemption value, were accounted for as part of compensation and benefits expense on the consolidated statements of operations, as further discussed below.

        Capital units included units issued to founders and those purchased by certain employees. Through March 31, 2007, the distributions associated with these units, and the subsequent incremental increase or decrease in their redemption value, were accounted for as part of interest on mandatorily redeemable units on the consolidated statements of operations.

        Effective March 31, 2007, the operating company amended its Operating Agreement to remove all mandatory redemption provisions. As all of its membership units thereafter had only equity characteristics, neither distributions, nor subsequent incremental changes to their value, were charged against income from the effective date of the amendment.

7



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 2—Significant Accounting Policies (Continued)

Management's Use of Estimates:

        The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses for the period. Actual results could differ from those estimates.

Fair Values of Financial Instruments:

        The carrying amount of all financial instruments in the consolidated statements of financial condition, including investments in marketable securities, approximates their fair values.

Revenue Recognition:

        Revenue, comprised of advisory fee income, is recognized over the period in which investment management services are provided. Advisory fee income includes management fees that are calculated based on percentages of assets under management, generally billed quarterly, either in arrears or advance, depending on their contractual terms. Advisory fee income also includes incentive fees that may be earned by the Company depending on the investment return of the assets under management. Incentive fee arrangements generally entitle the Company to participate, on a fixed-percentage basis, in any returns generated in excess of an agreed-upon benchmark. The Company's participation percentage in such return differentials is then multiplied by assets under management to determine the incentive fees earned. Returns are calculated on an annualized basis over the contract's measurement period, which may extend up to three years. Incentive fees are generally payable annually. Pursuant to the preferred accounting method under Emerging Issues Task Force Issue D-96, Accounting for Management Fees Based on a Formula ("EITF D-96"), such incentive fee income is recorded at the conclusion of the contractual performance period, when all contingencies are resolved. The Company recognized no such incentive fees for the three and nine months ended September 30, 2008. No incentive fees were recorded for the three months ended September 30, 2007. For the nine months ended September 30, 2007, the Company recognized incentive fees of $0.4 million.

Unit-based Compensation:

        Until March 31, 2007, compensation and benefits expense included the distributions made on compensatory units outstanding, as well as the incremental increases or decreases in the redemption values of these units subsequent to their grant date over their vesting period. Distributions were generally paid on the operating company's income before non-cash compensation charges. Redemption values were determined based on fair value.

        The Operating Agreement was amended as of March 31, 2007 to eliminate the obligation to redeem units under any circumstance. Since all compensatory units thereafter had only equity characteristics, neither distributions, nor subsequent incremental changes to these units' value, were charged against income subsequent to March 31, 2007. In addition, as of March 31, 2007, the operating company accelerated the vesting of all compensatory units then subject to vesting. The operating company recorded a $65.0 million one-time charge in compensation and benefits expense associated with this acceleration as of March 31, 2007.

8



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 2—Significant Accounting Policies (Continued)

Interest on Mandatorily Redeemable Units:

        Until the amendment of its Operating Agreement on March 31, 2007, the operating company recorded a net liability for its capital units equal to the accumulated redemption value as of the balance sheet date of all such outstanding units. This liability also included any undistributed earnings attributable to such units. As such, interest on mandatorily redeemable units included distributions made on capital units outstanding, as well as the incremental increases or decreases in the redemption values of these units. Distributions were generally paid on the operating company's income before non-cash compensation charges. Redemption values were determined based on fair value.

        Prior to March 31, 2007, capital units were required to be redeemed on the death of a member. Effective March 31, 2007, the Operating Agreement was amended to eliminate the obligation to redeem units under any circumstance. Since all capital units thereafter had only equity characteristics, neither distributions, nor subsequent incremental changes to these units' value, were charged against income subsequent to the effective date of the amendment. The $16.6 million charge recorded in 2007 represents the distributions and incremental changes to these units' fair value through March 31, 2007.

Earnings per Share:

        Prior to October 30, 2007, reported results of operations are solely those of Pzena Investment Management, LLC. Since the operating company is a private limited liability company, no historical earnings per share calculations have been reported prior to this date. Subsequent to October 30, 2007, earnings per share reflect the per share allocation of the Company's economic interest in its operating company.

        Basic earnings per share is computed by dividing the Company's net income or loss by the weighted-average number of shares outstanding during the reporting period. Diluted earnings per share adjusts this calculation to reflect the impact of all outstanding operating company membership units, as well as outstanding operating company options and phantom units, to the extent that they would have a dilutive effect on net income per share for the reporting period. Net income for diluted earnings per share generally assumes all operating company membership units are converted into Company stock at the beginning of the reporting period and the resulting change to Company net income associated with its increased interest in the operating company is taxed at the Company's effective tax rate. Should the additional assumed incremental units and/or income result in a reduction of a per share loss, the assumed effects of such a conversion are excluded from the calculation of diluted loss per share. For the three and nine months ended September 30, 2008, 57,950,910 operating company units, 954,310 options to purchase operating company units and 89,826 phantom operating company units were excluded from the calculation of diluted net loss per share, as their inclusion would have had an antidilutive effect for both periods.

9



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 2—Significant Accounting Policies (Continued)

        The Company's basic and diluted earnings per share, generated from its economic interest in the operating company, were determined as follows (in thousands, except for share and per-share amounts):

 
  For the Three
Months Ended
September 30, 2008
 

Net Loss for Basic Earnings per Share

 
$

(8,710

)
       

Basic Weighted Average Shares Outstanding

    6,123,494  

Basic Earnings per Share

  $ (1.42 )
       

Net Loss for Diluted Earnings per Share

 
$

(8,710

)
       

Diluted Weighted Average Shares Outstanding

    6,123,494  

Diluted Earnings per Share

  $ (1.42 )
       

 

 
  For the Nine
Months Ended
September 30, 2008
 

Net Loss for Basic Earnings per Share

 
$

(7,110

)
       

Basic Weighted Average Shares Outstanding

    6,122,229  

Basic Earnings per Share

  $ (1.16 )
       

Net Loss for Diluted Earnings per Share

 
$

(7,110

)
       

Diluted Weighted Average Shares Outstanding

    6,122,229  

Diluted Earnings per Share

  $ (1.16 )
       

Cash and Cash Equivalents:

        The Company considers all highly-liquid debt instruments with an original maturity of three months or less at the time of purchase to be cash equivalents.

        Interest on cash and cash equivalents is recorded as interest income on the consolidated statements of operations.

Due to/from Broker:

        Due to/from broker consists primarily of cash balances and amounts receivable/payable for unsettled securities transactions held/initiated at the clearing brokers of the Company's consolidated investment partnerships.

Investments in Securities:

        Investments in marketable securities and securities sold short represent primarily the securities held by the Company's consolidated investment partnerships. All such securities are recorded at fair

10



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 2—Significant Accounting Policies (Continued)


value, with net realized and unrealized gains and losses reported in earnings in the consolidated statements of operations.

        The Company adopted the provisions of Statement of Financial Accounting Standard No. 157, Fair Value Measurements ("FAS 157"), on January 1, 2008. FAS 157 defines fair value as the price that would be received to sell an asset, or paid to transfer a liability, in an orderly transaction between market participants at the measurement date. FAS 157 also establishes a framework for measuring fair value and a valuation hierarchy based upon the transparency of inputs used in the valuation of an asset or liability. Classification within the hierarchy is based upon the lowest level of input that is significant to the fair value measurement. The valuation hierarchy contains three levels: (i) valuation inputs are unadjusted quoted market prices for identical assets or liabilities in active markets (Level 1); (ii) valuation inputs are quoted prices for identical assets or liabilities in markets that are not active, quoted market prices for similar assets and liabilities in active markets and other observable inputs directly or indirectly related to the asset or liability being measured (Level 2); and (iii) valuation inputs are unobservable and significant to the fair value measurement (Level 3).

        The Company's fair value measurements relate to its interest rate swap, as well as its investments in marketable securities and securities sold short, which are primarily exchange-traded securities with quoted prices in active markets. The fair value measurement of the interest rate swap has been determined primarily based upon the market prices for interest rate swaps with similar provisions and the use of forward interest rate curves, and has been classified as Level 2. The fair value measurements of the securities have been classified as Level 1.

        The following table presents these instruments' fair value at September 30, 2008 (in thousands):

 
  Level 1   Level 2   Level 3  

Marketable Securities

  $ 30,940   $   $  

Securities Sold Short

    (3,393 )        

Interest Rate Swap

        315      
               

Total Fair Value

  $ 27,547   $ 315   $  
               

Securities Valuation:

        Investments in marketable equity securities and securities sold short which are traded on a national securities exchange are carried at fair value based on the last reported sales price on the valuation date. If no reported sales occurred on the valuation date, investments in securities are valued at the bid price and securities sold short are valued at the ask price. Securities transactions are recorded on the trade date.

        The net realized gain or loss on sales of securities and securities sold short is determined on a specific identification basis and is included in realized and unrealized loss, net on marketable securities and securities sold short in the consolidated statements of operations.

Concentrations of Credit Risk:

        Financial instruments that potentially subject the Company to concentrations of credit risk consist principally of cash and cash equivalents, amounts due from brokers and advisory fees receivable. The

11



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 2—Significant Accounting Policies (Continued)


Company maintains its cash and temporary cash investments in bank deposits and other accounts whose balances, at times, exceed federally insured limits.

        The concentration of credit risk with respect to advisory fees receivable is generally limited due to the short payment terms extended to clients by the Company. On a periodic basis, the Company evaluates its advisory fees receivable and establishes an allowance for doubtful accounts, if necessary, based on a history of past write-offs and collections and current credit conditions. For the three months ended September 30, 2008 and 2007, approximately 13.1% and 19.3%, respectively, of the Company's advisory fees were generated from an advisory agreement with one client. For the nine months ended September 30, 2008 and 2007, fees generated from this agreement comprised 14.4% and 21.6%, respectively, of the Company's total advisory fees. At September 30, 2008 and December 31, 2007, no allowance for doubtful accounts has been deemed necessary.

Financial Instruments:

        On February 28, 2008, the operating company entered into an interest rate swap agreement to manage its exposure to changes in interest rates associated with the credit agreement discussed in Note 10 (the "Credit Agreement"). The counterparty to this agreement is a major financial institution. The Company designated the interest rate swap agreement as a cash flow hedge of the Credit Agreement effective February 28, 2008. Pursuant to Statement of Financial Accounting Standards No. 133, Accounting for Derivative Instruments and Certain Hedging Activities ("FAS 133"), the Company recorded the cash flow hedge at fair value as a component of prepaid expenses and other assets on the consolidated statement of financial condition. Additionally, the Company's pro rata share of the changes in the fair value of this agreement were recorded as a component of accumulated other comprehensive income.

        During the three months ended September 30, 2008, the Company changed the designation of its swap agreement from a cash flow hedge to a trading derivative. Accordingly, the Company reclassified the cumulative changes in fair value related to this swap from accumulated other comprehensive income to other income/(expense). In addition, the Company recorded all subsequent changes to the swap's fair value as a component of other income/(expense). For the three and nine months ended September 30, 2008, the Company recognized approximately $0.3 million in other income associated with these adjustments.

        At September 30, 2008, the approximate fair value of the swap agreement was $0.3 million.

Property and Equipment:

        Property and equipment is carried at cost, less accumulated depreciation and amortization. Depreciation is provided on a straight-line basis over the estimated useful lives of the respective assets, which range from three to seven years. Leasehold improvements are amortized on a straight-line basis over the shorter of the useful life of the improvements or the remaining lease term.

Business Segments:

        The Company views its operations as comprising one operating segment.

12



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 2—Significant Accounting Policies (Continued)

Income Taxes:

        The Company is a "C" corporation under the Internal Revenue Code, and thus liable for federal, state and local taxes on the income derived from its economic interest in its operating company. The operating company is a limited liability company that has elected to be treated as a partnership for tax purposes. It has not made a provision for federal or state income taxes because it is the personal responsibility of each of the operating company's members (including the Company) to separately report their proportionate share of the operating company's taxable income or loss. Similarly, the income of the Company's consolidated investment partnerships is not subject to income taxes, as it is allocated to each partnership's individual partners. The operating company has made a provision for New York City Unincorporated Business Tax, or New York City UBT.

        The Company and its consolidated subsidiaries account for all state, local and federal taxation pursuant to the asset and liability method, which requires deferred income tax assets and liabilities to be recorded for temporary differences between the financial statement and tax bases of assets and liabilities that will result in taxable or deductible amounts in the future, based on enacted tax laws and rates applicable to the periods in which the temporary differences are expected to affect taxable income. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount expected to be realized. At September 30, 2008, the Company recorded a $62.7 million valuation allowance against the deferred tax asset recorded as part of the Company's initial public offering. At December 31, 2007, no such valuation allowances were deemed necessary. The income tax provision, or credit, is the tax payable or refundable for the period, plus or minus the change during the period in deferred tax assets and liabilities.

Foreign Currency:

        Investment securities and other assets and liabilities denominated in foreign currencies are translated into U.S. dollar amounts at the date of valuation. Purchases and sales of investment securities and income and expense items denominated in foreign currencies are translated into U.S. dollar amounts on the respective dates of such transactions.

        The Company does not isolate that portion of the results of its operations resulting from changes in foreign exchange rates on investments from the fluctuations arising from changes in market prices of securities held. Such fluctuations are included in the net realized and unrealized loss, net on marketable securities and securities sold short in the consolidated statements of operations.

        Reported net realized foreign exchange gains or losses arise from sales of foreign currencies, currency gains or losses realized between the trade and settlement dates on securities transactions, and the difference between the amounts of dividends, interest, and foreign withholding taxes recorded on the Company's books and the U.S. dollar equivalent of the amounts actually received or paid. Net unrealized foreign exchange gains and losses arise from changes in the fair values of assets and liabilities resulting from changes in exchange rates.

New Accounting Pronouncements:

        In February 2007, the FASB issued Statement of Financial Accounting Standards No. 159, The Fair Value Option for Financial Assets and Financial Liabilities ("FAS 159"). FAS 159 permits an entity to elect to measure certain financial instruments and certain other items at fair value with changes in fair

13



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 2—Significant Accounting Policies (Continued)


value recognized in earnings. FAS 159 is effective for fiscal years beginning after November 15, 2007. Since the Company chose not to elect this fair value option, the impact of the adoption of this statement was not material.

        In December 2007, the FASB issued Statement of Financial Accounting Standards No. 141 (revised 2007), Business Combinations ("FAS 141R") which replaces Statement of Financial Accounting Standards No. 141, Business Combinations . FAS 141R establishes the principles and requirements for how an acquirer: (i) recognizes and measures in its financial statements the identifiable assets acquired, the liabilities assumed, and any non-controlling interest in the acquiree; (ii) recognizes and measures the goodwill acquired in the business combination or a gain from a bargain purchase; and (iii) discloses the business combination. FAS 141R applies to all transactions in which an entity obtains control of one or more businesses, including transactions that occur without the transfer of any type of consideration. FAS 141R is effective on a prospective basis for all business combinations on or after December 15, 2008, with the exception of the accounting for valuation allowances on deferred taxes and acquired tax contingencies. Early adoption is not allowed. The Company is in the process of assessing the impact of this standard on its consolidated financial statements.

        In December 2007, the FASB issued Statement of Financial Accounting Standards No. 160, Noncontrolling Interests in Consolidated Financial Statements—an amendment of ARB No. 51 ("FAS 160"). FAS 160 amends ARB No. 51 and establishes accounting and reporting standards that require non-controlling interests (previously referred to as minority interest) to be reported as a component of equity, changes in a parent's ownership interest while the parent retains its controlling interest be accounted for as equity transactions, and upon a loss of control, retained ownership interest will be remeasured at fair value, with any gain or loss recognized in earnings. FAS 160 is effective for the Company on January 1, 2009, except for the presentation and disclosure requirements, which will be applied retrospectively. Early adoption is not allowed. The Company is in the process of assessing the impact of this standard on its consolidated financial statements.

        In March 2008, the FASB issued Statement of Financial Accounting Standards No. 161, Disclosures about Derivative Instruments and Hedging Activities ("FAS 161"). FAS 161 is intended to improve financial reporting about derivative instruments and hedging activities by requiring enhanced disclosures to enable investors to better understand their effects on an entity's financial position, financial performance, and cash flows. It is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. The Company is in the process of assessing the impact of this standard on its consolidated financial statements.

        In June 2008, the FASB issued EITF 03-6-1, Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities ("EITF 03-6-1"). The EITF release states that unvested share-based payment awards that contain nonforfeitable rights to dividends or dividend equivalents (whether paid or unpaid) are participating securities and shall be included in the computation of earnings per share pursuant to the two-class method. EITF 03-6-1 is effective for financial statements issued for fiscal years beginning after December 15, 2008, and interim periods within those years. The Company is in the process of assessing the impact of this standard on its consolidated financial statements.

14



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 3—Property and Equipment

        Property and equipment, net, is comprised of the following:

 
  As of  
 
  September 30,
2008
  December 31,
2007
 
 
  (in thousands)
 

Computer Hardware

 
$

906
 
$

796
 

Computer Software

    188     152  

Furniture and Fixtures

    1,161     1,156  

Office Equipment

    243     243  

Leasehold Improvements

    2,236     2,228  
           
 

Total

    4,734     4,575  

Less: Accumulated Depreciation

    (1,780 )   (1,412 )
           
 

Total

  $ 2,954   $ 3,163  
           

        Depreciation is included in general and administrative expenses and totaled $0.1 million for each of the three months ended September 30, 2008 and 2007, respectively. Such expenses totaled $0.4 million and $0.3 million for the nine months ended September 30, 2008 and 2007, respectively.

Note 4—Related Party Transactions

        For the three and nine months ended September 30, 2008, the Company earned $1.6 million and $5.3 million, respectively, in investment advisory fees from unconsolidated entities for which it acts as the investment manager. For the three and nine months ended September 30, 2007, such advisory fees totaled $2.1 million and $5.6 million, respectively.

        At September 30, 2008 and December 31, 2007, the Company had advanced $0.1 million to an international investment company for organization and start-up costs, which are included in receivable from related parties on the consolidated statements of financial condition. The Company is the sponsor and investment manager of this entity.

        At both September 30, 2008 and December 31, 2007, receivable from related parties included $0.1 million of loans to employees. These loans are in the form of forgivable promissory notes which are amortized through compensation expense pursuant to their terms.

        Employees of the Company who are considered accredited investors have the ability to open separately-managed accounts, or invest in certain of the Company's consolidated investment partnerships, without being assessed advisory fees. Investments by employees in separately-managed accounts are permitted only at the discretion of the Executive Committee of the Company, but are generally not subject to the same minimum investment levels that are required of outside investors. Some of the investment advisory fees that are waived on separately managed accounts for employees are for strategies that typically have account fee minimums, which vary by strategy, but typically average approximately $50,000 per account per year.

        During the nine months ended September 30, 2008, a shareholder who held more than 10% of the Company's outstanding shares sold shares in transactions deemed to be short-swing sales. Under Section 16(b) of the Securities Exchange Act of 1934, the shareholder was required to disgorge to the

15



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 4—Related Party Transactions (Continued)


Company the $0.2 million in profits realized from these stock sales. The Company recognized these proceeds as a capital contribution from a shareholder and reflected a corresponding increase to additional paid-in capital in its consolidated statements of changes in equity. Proceeds from these transactions did not affect the Company's consolidated statements of operations.

Note 5—Investments in Affiliates

        The Company held an investment in, and acted as manager of, an unconsolidated investment partnership which was accounted for under the equity method. Summary financial information related to this entity is as follows:

 
  PAI Hedged Value
Fund, LLC
 
 
  For the Three Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Net Investment Income/(Loss)

 
$

 
$

10
 

Net Realized and Unrealized Loss

        (547 )
           

Net Income (Loss)

  $   $ (537 )
           

Company's Equity in Income (Loss)

  $   $ (148 )
           

Ownership Percentage

    0%     28%  

 

 
  PAI Hedged Value
Fund, LLC
 
 
  For the Nine Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Net Investment Income (Loss)

 
$

 
$

1
 

Net Realized and Unrealized Income (Loss)

        (49 )
           

Net Income (Loss)

  $   $ (48 )
           

Company's Equity in Income (Loss)

  $   $ (3 )
           

Ownership Percentage

    0%     28%  

        In the fourth quarter of 2007, the decision was made to dissolve the PAI Hedged Value Fund, LLC. This entity was consolidated beginning October 1, 2007, the effective date of the withdrawal of the external joint venture partner, until it was fully liquidated on December 28, 2007.

Note 6—Commitments and Contingencies

        In the normal course of business, the Company enters into agreements that include indemnities in favor of third parties, such as engagement letters with advisors and consultants. In certain cases, the Company may have recourse against third parties with respect to these indemnities. The Company

16



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 6—Commitments and Contingencies (Continued)


maintains insurance policies that may provide coverage against certain claims under these indemnities. FASB issued Interpretation No. 45, Guarantor's Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others ("FIN 45"), providing accounting and disclosure requirements for certain guarantees. The Company has had no claims or payments pursuant to these agreements, and it believes the likelihood of a claim being made is remote. Utilizing the methodology in FIN 45, the Company's estimate of the value of such guarantees is de minimis, and, therefore, an accrual has not been made in the consolidated financial statements.

        The Company may be subject to various legal and administrative proceedings in the normal course of business. On November 21, 2007 and January 16, 2008, substantively identical putative class action lawsuits were commenced in the United States District Court for the Southern District of New York against the Company and Richard S. Pzena, the Company's chief executive officer, seeking remedies under Section 11 of the Securities Act of 1933, as amended. The Court consolidated the lawsuits and appointed co-lead plaintiffs, who filed a consolidated amended complaint. The consolidated amended complaint names as defendants the Company, Richard S. Pzena, and two of the underwriters of the Company's initial public offering, Goldman Sachs & Co., Inc. and UBS Securities LLC. Plaintiffs seek to represent a class of all persons who purchased or otherwise acquired Class A common stock issued pursuant or traceable to the Company's initial public offering. The consolidated amended complaint alleges that the registration statement and prospectus relating to the initial public offering of the Company's Class A common stock contained material misstatements and omissions and wrongfully failed to disclose net redemptions in the John Hancock Classic Value Fund, for which the Company acts as sub-investment advisor. The consolidated amended complaint seeks damages in an unspecified amount including rescission or rescissory damages. The Court granted Company's motion to dismiss the consolidated amended complaint and, on September 4, 2008, the Court entered a judgment in favor of the Company. Plaintiffs have filed a Notice of Appeal of the Court's judgment to the United States Court of Appeals for the Second Circuit. The Company believes that the allegations and claims are without merit and will continue to contest these claims vigorously.

        The Company leases office space under a non-cancelable operating lease agreement which expires on October 31, 2015. The Company reflects lease expense over the lease term on a straight-line basis. In early 2007, the Company agreed to lease additional office space at the Company's headquarters at 120 West 45th Street, New York, New York. The Company took possession of this space on March 1, 2007. The new lease is co-terminous with the Company's existing lease.

        Lease expenses were $0.5 million for each of the three months ended September 30, 2008 and 2007. Such expenses totaled $1.5 million and $1.2 million, for the nine months ended September 30, 2008 and 2007, respectively.

Note 7—Retirement Plan

        The Company maintains a defined contribution pension plan which covers substantially all members and employees. The Company may make contributions to the plan at the discretion of management. Under the terms of the plan, all such contributions vest immediately. The Company recognized $0.4 million in expense associated with this plan for each of the three months ended September 30, 2008 and 2007. Such expenses totaled $1.4 million and $1.1 million for the nine months ended September 30, 2008 and 2007, respectively. These expenses are included in compensation and benefits expense in the consolidated statements of operations.

17



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 8—Compensation and Benefits

        As discussed further in Note 14, the operating company issued compensatory units to employees and members which had redemption features that required them to be classified as liabilities in the consolidated statements of financial condition prior to March 31, 2007. Until this date, distributions on the compensatory units outstanding, and changes in these units' redemption values, were recorded as compensation and benefits expense.

        Compensation and benefits expense to employees and members is comprised of the following:

 
  For the Three Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Cash Compensation and Other Benefits

 
$

7,888
 
$

8,807
 

Distributions on Compensatory Units

         

Change in Redemption Value of Compensatory Units

         

Acceleration of Vesting of Compensatory Units

         

Other Non-Cash Compensation

    272      
           
 

Total Compensation and Benefits Expense

  $ 8,160   $ 8,807  
           

 

 
  For the Nine Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Cash Compensation and Other Benefits

 
$

24,868
 
$

26,239
 

Distributions on Compensatory Units

        12,087  

Change in Redemption Value of Compensatory Units

        15,969  

Acceleration of Vesting of Compensatory Units

        64,968  

Other Non-Cash Compensation

    905     1,950  
           
 

Total Compensation and Benefits Expense

  $ 25,773   $ 121,213  
           

        Distributions on compensatory units included cash distributions paid on, as well as the net increase or decrease in undistributed earnings attributable to, compensatory units.

        As of March 31, 2007, the effective date of the amendment to the Operating Agreement to eliminate the operating company's obligation to redeem units under any circumstance, the unit-based compensation awards previously categorized as liabilities were reclassified as equity. Further, as of March 31, 2007, the operating company accelerated the vesting of all compensatory units then subject to vesting. Subsequent to this date, distributions on these units have not been considered a component of compensation and benefits expense but are instead recorded as a direct reduction of members' capital.

18



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 8—Compensation and Benefits (Continued)

        The change in liability for the redemption of compensatory units, through the date of the amendment of the Operating Agreement described above, is as follows (in thousands):

Balance at December 31, 2006

  $ 263,980  
 

Value of Units Vested During the Year

    79,199  
 

Increase in Value of Units Previously Vested

    1,738  
 

Change in Undistributed Earnings

     
 

Compensation Expense Associated with Unvested Units

     
 

Payment of Liabilities

    (953 )
 

Reclassification due to Amendment of Operating Agreement

    (343,964 )
       

Balance at March 31, 2007

  $  
       

        For the three months ended September 30, 2008 and 2007, the operating company granted no options to purchase units pursuant to the Pzena Investment Management, LLC 2006 Equity Incentive Plan. For the nine months ended September 30, 2008 and 2007, the operating company granted 446,000 and 645,000 such options, respectively. The options had varying vesting schedules and were issued at strike prices equal to the assessed fair market value per unit at the time of award issuance. The Company determined that the total grant-date fair value of the options awarded during the nine months ended September 30, 2008 and 2007 was approximately $1.2 million and $2.0 million, respectively. For the three and nine months ended September 30, 2008, the Company recognized approximately $0.1 million and $0.2 million, respectively, in compensation and benefits expense associated with the amortization of the awards. For each of the three and nine months ended September 30, 2007, such amortization was approximately $2.0 million.

        Pursuant to the operating company's bonus plan, which became effective January 1, 2007, eligible employees whose cash compensation is in excess of certain thresholds have a portion of that excess mandatorily deferred. Amounts deferred may be credited to an investment account or take the form of phantom Class B units, at the employee's discretion, and vest ratably over four years commencing January 1, 2008. At September 30, 2008, the liability associated with such investment accounts was approximately $0.5 million, and has been included as a component of other liabilities on the consolidated statement of financial condition. For the three and nine months ended September 30, 2008, the Company recognized approximately $0.2 and $0.7 million, respectively, in compensation and benefits expense associated with the amortization of deferred compensation awards.

Note 9—Short Term Borrowings

        Simultaneously with the Credit Agreement described below, on July 23, 2007, the operating company obtained a $20.0 million revolving credit facility, expiring on July 23, 2010, in order to finance its short term working capital needs. This facility carries a commitment fee of 0.2% on any unused amounts, and the Company's approximately $1.8 million letter of credit reduces the amounts otherwise available to be used. On February 11, 2008, the operating company entered into Amendment No. 1 to its Credit Agreement. The amendment changed a number of Credit Agreement provisions, including reducing the capacity of the revolving credit facility from $20.0 million to $5.0 million. On September 19, 2008, the operating company entered into Amendment No. 2 to its Credit Agreement. The amendment reduced the capacity of the revolving credit facility from $5.0 million to $3.0 million

19



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 9—Short Term Borrowings (Continued)


and extended its maturity to July 23, 2011. As of and for the period ended September 30, 2008, and as of December 31, 2007, no balance was outstanding against the facility.

Note 10—Debt

        On July 23, 2007, the operating company entered into a $60.0 million, three-year Credit Agreement, the proceeds of which were used to finance a one-time distribution to its members. The principal amount borrowed bore interest at a variable rate based, at the Company's option, on (i) the one, two, three, nine or twelve-month LIBOR rate plus 1.00%, or (ii) the higher of the lender's prime rate and the Federal Funds Rate. The principal amount was payable in full at the end of the three-year term, with no penalty for prepayment. Approximately $0.1 million in debt issuance costs were incurred in association with this loan. Such costs have been recorded in prepaid expenses and other assets on the consolidated statements of financial condition and are being amortized over the term of the loan.

        On February 11, 2008, the operating company entered into Amendment No. 1 to the Credit Agreement. The agreement, as amended, required the operating company to maintain assets under management of at least $15.0 billion and generate consolidated earnings before interest, taxes, depreciation and amortization ("EBITDA"), as defined, of at least $40.0 million in any consecutive four fiscal quarterly periods. Pursuant to the terms of the amended agreement, term loan amortization was required beginning in any period when assets under management were less than $20.0 billion and ending when assets under management was greater than $21.5 billion. Further, a 50% excess cash flow sweep was required if assets under management were below $17.5 billion. Additionally, the LIBOR interest rate option was increased to LIBOR plus 1.50%. For the period from February 11, 2008 through July 23, 2008, the interest rate in effect was 6.91%, which was equal to the twelve-month LIBOR rate in effect at the time of the closing of the agreement of 5.41%, plus 1.50%. During the three months ended June 30, 2008, the Company's assets under management fell below $20 billion. On June 30, 2008, the Company made a required amortization payment of $3.0 million.

        On September 19, 2008, the operating company entered into Amendment No. 2 to its Credit Agreement. The agreement, as amended, requires the operating company to maintain assets under management of at least $12.0 billion and to make minimum quarterly amortization payments of $2.0 million until maturity, which was extended to July 23, 2011. Additionally, the LIBOR interest rate option was increased to LIBOR plus 1.75% and the EBITDA financial covenant stipulated in Amendment No. 1 was eliminated. The excess cash flow sweep was also increased to 75% of excess cash flow. On September 22, 2008, the Company made a required amortization payment of $5.0 million as a condition precedent to the effectiveness of this amendment. On September 30, 2008, the Company made a quarterly amortization payment of $5.0 million.

Note 11—Interest Rate Swap

        The Company manages its exposure to changes in market rates of interest. The Company's use of derivative instruments is limited to an interest rate swap used to manage the interest rate exposure related to its Credit Agreement. The Company monitors its position and the credit rating of the counterparty and does not anticipate non-performance by such counterparty.

        On February 28, 2008, the operating company entered into a $60.0 million notional amount interest rate swap agreement that commenced on July 23, 2008. The swap, which expires July 23, 2010,

20



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 11—Interest Rate Swap (Continued)


obligates the operating company to pay a 2.825% fixed rate of interest on the notional amount and requires the counterparty to pay the operating company a floating interest rate based on the monthly LIBOR interest rate. The spread on the Credit Agreement is in addition to these amounts.

        Concurrently with the amortization of the Credit Agreement described above, the Company executed a $13.0 million reduction in the notional amount of its interest rate swap. The proceeds received from the counterparty in exchange for these reductions were less than $0.1 million for both the three and nine months ended September 30, 2008.

        During the three months ended September 30, 2008, the Company changed the designation of its swap agreement from a cash flow hedge to a trading derivative. Accordingly, the Company reclassified the cumulative changes in fair value related to this swap from accumulated other comprehensive income to other income/(expense). Additionally, the Company recorded all subsequent changes to the swap's fair value as a component of other income/(expense). For the three and nine months ended September 30, 2008, the Company recognized approximately $0.3 million in other income associated with these adjustments.

Note 12—Income Taxes

        The operating company is a limited liability company that has elected to be treated as a partnership for tax purposes. Neither it nor the Company's other consolidated subsidiaries has made a provision for federal or state income taxes because it is the personal responsibility of each of these entities' members (including the Company) to separately report their proportionate share of the respective entity's taxable income or loss. The operating company has made a provision for New York City UBT. Subsequent to the offering and reorganization on October 30, 2007, the Company, as a "C" corporation under the Internal Revenue Code, is liable for federal, state and local taxes on the income derived from its economic interest in its operating company, which is net of UBT. Correspondingly, in its consolidated financial statements, the Company reports both the operating company's provision for UBT as well as its provision for federal, state and local corporate taxes. The components of the provision for income taxes are as follows:

 
  For the Three Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Current Provision:

             
 

Unincorporated Business Taxes

  $ 824   $ 1,317  
 

Local Corporate Tax

    (3 )    
 

State Corporate Tax

    (2 )    
 

Federal Corporate Tax

    (20 )    
           

Total Current Provision

  $ 799   $ 1,317  
           

21



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 12—Income Taxes (Continued)


 
  For the Three Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Deferred Provision:

             
 

Unincorporated Business Taxes

  $ (55 ) $ (48 )
 

Local Corporate Tax

    50      
 

State Corporate Tax

    116      
 

Federal Corporate Tax

    334      
           

Total Deferred Provision

  $ 445   $ (48 )
           

Deferred Income Tax Valuation Allowance

   
62,720
   
 
           

Total Provision for Income Taxes

  $ 63,964   $ 1,269  
           

 

 
  For the Nine Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Current Provision:

             
 

Unincorporated Business Taxes

  $ 2,758   $ 3,918  
 

Local Corporate Tax

    (3 )    
 

State Corporate Tax

    (2 )    
 

Federal Corporate Tax

    (20 )    
           

Total Current Provision

  $ 2,733   $ 3,918  
           

Deferred Provision:

             
 

Unincorporated Business Taxes

  $ (164 ) $ (42 )
 

Local Corporate Tax

    176      
 

State Corporate Tax

    338      
 

Federal Corporate Tax

    1,159      
           

Total Deferred Provision

  $ 1,509   $ (42 )
           

Deferred Income Tax Valuation Allowance

    62,720      
           

Total Provision for Income Taxes

  $ 66,962   $ 3,876  
           

        Prior to October 30, 2007, the operating company was a cash basis taxpayer. As the result of the Company's acquisition of membership units in conjunction with the offering, the operating company was required to become an accrual basis taxpayer. Pursuant to Section 481 of the Internal Revenue Code, the cumulative difference between the two methods of taxpaying are amortizable over four years. These differences generated approximately $0.5 and $0.7 million in deferred tax liabilities as of September 30, 2008 and December 31, 2007, respectively. Such amounts are recorded in other liabilities in the consolidated statements of financial condition.

        The acquisition of the operating company membership units noted above has allowed the Company to make an election under Section 754 of the Internal Revenue Code to step up its tax basis

22



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 12—Income Taxes (Continued)


in the net assets acquired. This step up is deductible for tax purposes over a 15-year period. Based on the net proceeds of the offering and tax basis of the operating company as of October 30, 2007, this election gave rise to a deferred tax asset of approximately $68.7 million. Pursuant to a Tax Receivable Agreement signed between the members of the operating company and the Company, 85% of the cash savings generated by this election will be distributed to the selling shareholders upon this benefit's realization.

        At September 30, 2008, the Company evaluated the asset associated with this election and determined that, after weighing both positive and negative evidence, a portion of its benefits were more likely than not to go unrealized due to estimates of future taxable income. Correspondingly, the Company established a $62.7 million valuation allowance to reduce the net deferred tax asset to an amount more likely than not to be realized. This deferred tax asset remains available to the Company and can be used to reduce taxable income in future years. The Company similarly reduced the associated liability to selling shareholders to reflect this change in the estimated realization of the asset. The Company recorded an approximate $53.3 million credit to other income associated with the reduction in the liability to selling shareholders on September 30, 2008.

        As of September 30, 2008 and December 31, 2007, the net value of this deferred tax asset was approximately $3.8 million and $68.2 million, respectively. As of September 30, 2008 and December 31, 2007, the liability to selling shareholders was approximately $4.7 million and $58.4 million, respectively.

        For the three and nine months ended September 30, 2008, the Company's income, derived solely from its economic interest in its operating company, was determined as follows:

 
  For the Three
Months Ended
September 30, 2008
 
 
  (in thousands)
 

Income Before Taxes and Non-Controlling Interests

 
$

63,611
 
 

Unincorporated Business Taxes

    (769 )
 

Non-Controlling Interests

    (8,357 )
       

Income Before Corporate Income Taxes

  $ 54,485  
       

 

 
  For the Nine
Months Ended
September 30, 2008
 
 
  (in thousands)
 

Income Before Taxes and Non-Controlling Interests

  $ 90,752  
 

Unincorporated Business Taxes

    (2,594 )
 

Non-Controlling Interests

    (30,900 )
       

Income Before Corporate Income Taxes

  $ 57,258  
       

23



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 12—Income Taxes (Continued)

        In September 2006, the Financial Accounting Standards Board issued Interpretation No. 48, Accounting for Uncertainty in Income Taxes ("FIN 48"). FIN 48 establishes the minimum threshold for recognizing, and a system for measuring, the benefits of tax return positions in financial statements. It is the Company's policy to recognize accrued interest and penalties associated with uncertain tax positions as part of the tax provision. For the three and nine months ended September 30, 2008 and 2007, no such expenses were recognized, and as of September 30, 2008 and December 31, 2007, no accruals were recorded.

        The Company and the operating company are generally no longer subject to U.S federal, or state and local income tax examinations by tax authorities for any year prior to 2004. All tax years subsequent to this date are considered open and subject to examination by tax authorities.

Note 13—Investments in Marketable Securities

        Investments in marketable securities and securities sold short consisted of the following at September 30, 2008:

 
  Cost   Unrealized
Gain/(Loss)
  Fair Value  
 
  (in thousands)
 

Equities

  $ 42,055   $ (11,115 ) $ 30,940  
               

 

 
  Cost   Unrealized
Gain/(Loss)
  Fair Value  
 
  (in thousands)
 

Equity Securities Sold Short

  $ 4,335   $ (942 ) $ 3,393  
               

        Investments in marketable securities and securities sold short consisted of the following at December 31, 2007:

 
  Cost   Unrealized
Gain/(Loss)
  Fair Value  
 
  (in thousands)
 

Equities

  $ 28,738   $ (1,273 ) $ 27,465  
               

 

 
  Cost   Unrealized
Gain/(Loss)
  Fair Value  
 
  (in thousands)
 

Equity Securities Sold Short

  $ 1,047   $ (19 ) $ 1,028  
               

Note 14—Members' Equity Interests of Operating Company

        Prior to March 31, 2007, all operating company ownership interests were required to be repurchased in the event of the holder's death or, if applicable, termination of employment. These

24



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 14—Members' Equity Interests of Operating Company (Continued)


redemption features caused all of the operating company's units to be classified as liabilities as of the effective date of FAS 150 with respect to the operating company, which was July 1, 2003.

        Prior to March 31, 2007, distributions made with respect to compensatory units were classified as compensation and benefits expense. Incremental changes to these units' redemption values subsequent to the grant date were also included as a component of compensation and benefits expense at each reporting period. For the operating company's non-compensatory units (capital units), distributions and incremental changes in the net liability associated with these units' redemption values have been recorded as components of interest on mandatorily redeemable units in the consolidated statements of operations for all periods prior to March 31, 2007.

        The Operating Agreement was amended as of March 31, 2007 to eliminate the operating company's obligation to redeem units under any circumstance. As a result, all units that were categorized as liabilities in the consolidated financial statements were reclassified as equity as of March 31, 2007. Subsequent to this date, distributions paid on unit-based compensation and incremental changes to these units' value are not considered a component of compensation and benefits expense and are instead recorded as a direct reduction of undistributed earnings. As of March 31, 2007, the operating company accelerated the vesting of all compensatory units then subject to vesting. The one-time charge associated with this acceleration, approximately $65.0 million, was recorded on March 31, 2007.

        Compensation and benefits expense associated with the operating company's compensatory units is comprised of the following:

 
  For the Three Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Distributions on Compensatory Units

  $   $  

Change in Redemption Value of Compensatory Units

         

Acceleration of Vesting of Compensatory Units

         

Other Non-Cash Compensation

    272      
           
 

Total Compensation and Benefits Expense

  $ 272   $  
           

 

 
  For the Nine Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Distributions on Compensatory Units

  $   $ 12,087  

Change in Redemption Value of Compensatory Units

        15,969  

Acceleration of Vesting of Compensatory Units

        64,968  

Other Non-Cash Compensation

    905     1,950  
           
 

Total Compensation and Benefits Expense

  $ 905   $ 94,974  
           

25



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 14—Members' Equity Interests of Operating Company (Continued)

        For the three months ended September 30, 2008 and 2007, the operating company granted no options to purchase units pursuant to the Pzena Investment Management, LLC 2006 Equity Incentive Plan. For the nine months ended September 30, 2008 and 2007, the Company granted 446,000 and 645,000 such options, respectively. The options had varying vesting schedules and were issued at strike prices equal to the assessed fair market value per unit at the time of award issuance. The Company determined that the total grant-date fair value of the options awarded during the nine months ended September 30, 2008 and 2007 was approximately $1.2 million and $2.0 million, respectively, using the Black-Scholes option pricing model. The weighted-average grant date fair values for options issued during the nine months ended September 30, 2008 and 2007 were $2.64 and $3.02, respectively.

        On January 1, 2008, the operating company granted 13,000 restricted Class B units to certain members pursuant to the Pzena Investment Management, LLC 2006 Equity Incentive Plan. On January 1, 2008, the operating company also issued 89,826 phantom Class B units as part of its Bonus Plan. These grants each vest ratably over a four-year period commencing January 1, 2008.

        As of March 31, 2007, the operating company accelerated the vesting of all options then subject to vesting. The non-cash compensation charge associated with this accelerated amortization was approximately $1.9 million.

        Except as otherwise provided by law, the liability of a member of the operating company is limited to the amount of its capital account. A member may transfer or assign all, or any part of, its membership interest to any other party (a "Transferee"). A Transferee of such membership interest shall not become a member unless its membership in the operating company is unanimously approved by the then existing member(s) in writing. Any Transferee admitted as a member shall succeed to the capital account or portion thereof transferred or assigned, as if no such transfer or assignment had occurred.

        On February 13, 2007, the operating company accelerated the vesting of 285,000 of the 315,500 Class A units that were granted on January 1, 2007 pursuant to its 2006 Equity Incentive Plan and repurchased them from a departing employee. The charge associated with this acceleration was approximately $3.8 million and has been included in compensation and benefits expense for the three months ended March 31, 2007.

        On July 17, 2007, the operating company effected a 5-for-1 unit split. All unit and per unit amounts have been adjusted to reflect this split.

Note 15—Shareholders' Equity

        The Company was incorporated in the State of Delaware on May 8, 2007. On May 10, 2007, the Company issued 100 shares of its common stock, par value $0.01 per share (the "Old Common Stock"), for $100 to Richard S. Pzena, the sole director of the Company as of that date. On October 5, 2007, the Company effected a 100-for-6 reverse stock split of all shares of its Old Common Stock then outstanding. All share amounts have been adjusted to reflect this split. As of the effectiveness of the amendment and restatement of the Company's certificate of incorporation on October 30, 2007, each share of the Old Common Stock outstanding immediately prior to effectiveness was reclassified as one share of the Company's Class A common stock, par value $0.01 per share.

26



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 15—Shareholders' Equity (Continued)

        On October 30, 2007, the Company consummated an initial public offering of 6,100,000 shares of its Class A common stock, par value $0.01 per share, for net proceeds of approximately $98.9 million, after payment of underwriting discounts and estimated offering expenses. These net proceeds were used to purchase 6,100,000 membership units of the operating company, representing 9.5% of its then outstanding membership units, from its two outside investors and one former employee. Concurrently with the consummation of the Company's initial public offering, the Operating Agreement of the operating company was amended and restated such that, among other things, (i) the Company became the sole managing member of the operating company, (ii) the 6,100,000 membership units of the operating company that the Company acquired were reclassified as Class A units of the operating company, (iii) an additional 11,118 Class A units were issued to the Company in respect of its issuance of 11,112 shares of Class A common stock to certain directors of the Company on October 30, 2007, and contribution of the $100 initial investment the Company received in exchange for issuance of six shares of Class A common stock on May 10, 2007, and (iv) the holders of the remaining 90.5% of the outstanding membership units of the operating company were reclassified as Class B units of the operating company. Class A and Class B units of the operating company have the same economic rights per unit. Accordingly, immediately following the consummation of the offering and reorganization, the holders of Class A common stock (through the Company) and the holders of Class B units of the operating company held approximately 9.5% and 90.5%, respectively, of the economic interests in the operations of the business. As of September 30, 2008, the holders of Class A common stock (through the Company) and the holders of Class B units of the operating company held approximately 9.6% and 90.4%, respectively, of the economic interests in the operations of the business.

        For each membership unit of the operating company that was reclassified as a Class B unit in the reorganization, the Company issued the holder one share of its Class B common stock, par value $0.000001 per share, in exchange for the payment of this par value. Each share of the Company's Class B common stock entitles its holder to five votes, until the first time that the number of shares of Class B common stock outstanding constitutes less than 20% of the number of all shares of our common stock outstanding. From this time and thereafter, each share of the Company's Class B common stock entitles its holder to one vote. When a Class B unit is exchanged for a share of the Company's Class A common stock or forfeited, a corresponding share of the Company's Class B common stock will automatically be redeemed and cancelled. Conversely, to the extent that the Company causes Pzena Investment Management, LLC to issue additional Class B units to employees pursuant to its equity incentive plan, these additional holders of Class B units would be entitled to receive a corresponding number of shares of the Company's Class B common stock (including if the Class B units awarded are subject to vesting).

        Simultaneously with the consummation of the offering and reorganization, all holders of the Company's Class B common stock entered into a stockholders' agreement, pursuant to which they agreed to vote all shares of Class B common stock then held by them, and acquired in the future, together on all matters submitted to a vote of the common stockholders.

        The outstanding shares of the Company's Class A common stock represent 100% of the rights of the holders of all classes of the Company's capital stock to receive distributions, except that holders of Class B common stock will have the right to receive the class's par value upon the Company's liquidation, dissolution or winding up.

27



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 15—Shareholders' Equity (Continued)

        Pursuant to the amended and restated Operating Agreement of the operating company, each vested Class B unit is exchangeable for a share of the Company's Class A common stock, subject to certain exchange timing and volume limitations.

        The acquisition of the operating company's membership interests by the Company has been treated as a reorganization of entities under common control pursuant to the guidance set forth in FTB 85-5. Accordingly, the net assets assumed by the Company through the offering have been reported at the operating company's historical cost basis. As a result of these transactions, as of and subsequent to October 30, 2007, (i) the Company has consolidated the financial results of the operating company with its own and reflected the membership interest in it that it does not own as a non-controlling interest in its consolidated financial statements, and (ii) the Company's income will be generated by its economic interest in the operating company's net income.

        This acquisition of membership units in the operating company has allowed the Company to make an election to step up its tax basis in the net assets acquired. This step up is deductible for tax purposes over a 15-year period. Pursuant to a tax receivable agreement between the Company and the operating company, 85% of the benefits of this election will be returned to the selling unitholders of the operating company as they are realized.

        The Company did not initially record a non-controlling interest associated with the acquisition of its operating company, as the post offering net equity of the operating company was less than zero. Pursuant to the guidance in EITF 95-7, an operating company non-controlling interest is recorded when the initial deficit that existed at acquisition is extinguished.

        On March 4, 2008, the Company's Board of Directors declared a quarterly dividend of $0.11 per share of Class A common stock, paid on April 11, 2008 to shareholders of record as of March 27, 2008.

        On June 3, 2008, the Company's Board of Directors declared a quarterly dividend of $0.11 per share of Class A common stock, paid on July 11, 2008 to shareholders of record as of June 27, 2008.

        On September 3, 2008, the Company's Board of Directors declared a quarterly dividend of $0.05 per share of Class A common stock, payable on October 10, 2008 to shareholders of record as of September 26, 2008. The liability associated with this payment is recorded in dividends payable on the consolidated statement of financial condition as of September 30, 2008.

Note 16—Subsequent Events

        On October 28, 2008, the operating company entered into Amendment No. 3 to its Credit Agreement. This amendment provided for the following changes to the Credit Agreement, among others:

    (i)
    the minimum assets under management financial covenant was eliminated;

    (ii)
    the excess cash flow mandatory repayment was eliminated;

    (iii)
    the commitments under the revolving credit facility were reduced from $3.0 million to approximately $1.8 million;

    (iv)
    with respect to loans borrowed at base rate, the margin added to base rate was increased from 0.00% to 0.75%; with respect to loans borrowed at LIBOR, the margin was not modified;

28



PZENA INVESTMENT MANAGEMENT, INC.
(Prior to October 30, 2007—Pzena Investment Management, LLC)

Unaudited Notes to the Consolidated Financial Statements (Continued)

Note 16—Subsequent Events (Continued)

    (v)
    certain additional restrictions were placed on the operating company's ability to make Restricted Payments (as defined in the Credit Agreement), including dividends; and

    (vi)
    amendments to certain covenants in order to permit the incurrence of subordinated debt by the operating company.

        Conditions precedent to the execution of this amendment included, among others, (i) the repayment by the operating company of $25.0 million of the $47.0 million principal amount outstanding under the Credit Agreement as of October 28, 2008, and (ii) the grant by the operating company and one of its subsidiaries of a security interest in their accounts receivable.

        In order to fund the $25.0 million repayment by the operating company, the Company used $9.0 million in cash reserves and the proceeds from the issuance by the operating company of an aggregate of $16.0 million principal amount of Senior Subordinated Notes (collectively, the "Notes") to entities established by Richard Pzena, the Company's Chief Executive Officer, for the benefit of certain of his family members, an entity controlled by a Company director, and a former employee. The issuance of these Notes was approved by the three independent members of the Company's Board of Directors.

        The Notes were issued on October 28, 2008. Each of these Notes is unsecured, has a ten-year maturity and bears interest at 6.30% per annum. The provisions of the Notes include a restricted payments covenant (including dividends), a prohibition on incurring indebtedness which is not subordinated to the Notes, and events of default based on failure to make payments, bankruptcy, change of control and acceleration of material indebtedness. In addition, the Notes are subordinated to the repayment in full of the loans under the Credit Agreement.

        In October 2008, the selling unitholders agreed to waive any payments that the Company is or will be required to make to them for the 2008 and 2009 tax years pursuant to the Tax Receivable Agreement.

        On October 31, 2008, the Company's assets under management were approximately $11.9 billion.

29


Item 2.    Management's Discussion and Analysis of Financial Condition and Results of Operations.

Overview

        We are an investment management firm that utilizes a classic value investment approach in each of our investment strategies. We currently manage assets in a variety of value-oriented investment strategies across a wide range of market capitalizations in both U.S. and international capital markets. At September 30, 2008, our assets under management, or AUM, were $15.5 billion. We manage separate accounts on behalf of institutions and high net worth individuals and act as sub-investment adviser for a variety of SEC-registered mutual funds and offshore funds.

        We function as the holding company through which the business of our operating company, Pzena Investment Management, LLC, is conducted. Following our initial public offering and reorganization on October 30, 2007, we became the sole managing member of Pzena Investment Management, LLC. As such, we now control its business and affairs and, therefore, consolidate its financial results with ours. In light of our employees' and other investors' collective membership interest in our operating company, we reflect their ownership as a non-controlling interest in our consolidated financial statements. As a result, subsequent to October 30, 2007, our income is generated by our economic interest in our operating company's net income. Results for the periods prior to October 30, 2007 reflect solely the operations of Pzena Investment Management, LLC. As of September 30, 2008, the holders of Class A common stock (through the Company) and the holders of Class B units of the operating company held approximately 9.6% and 90.4%, respectively, of the economic interests in the operations of the business.

Revenue

        We generate revenue from management fees and incentive fees, which we collectively refer to as our advisory fees, by managing assets on behalf of separate accounts and acting as a sub-investment adviser for mutual funds and certain other investment funds. Our advisory fee income is recognized over the period in which investment management services are provided. Pursuant to the preferred accounting method under Emerging Issues Task Force Issue D-96, Accounting for Management Fees Based on a Formula ("EITF D-96"), income from incentive fees is recorded at the conclusion of the contractual performance period, when all contingencies are resolved.

        Our advisory fees are primarily driven by the level of our AUM. Our AUM increases or decreases with the net inflows or outflows of funds into our various investment strategies and with the investment performance thereof. In order to increase our AUM and expand our business, we must develop and market investment strategies that suit the investment needs of our target clients and provide attractive returns over the long term. The value and composition of our AUM, and our ability to continue to attract clients, will depend on a variety of factors including, among other things:

    our ability to educate our target clients about our classic value investment strategies and provide them with exceptional client service;

    the relative investment performance of our investment strategies, as compared to competing products and market indices;

    competitive conditions in the investment management and broader financial services sectors;

    general economic conditions;

    investor sentiment and confidence; and

    our decision to close strategies when we deem it to be in the best interests of our clients.

        For our separately-managed accounts, we are paid fees according to a schedule, which varies by investment strategy. The substantial majority of these accounts pay us management fees pursuant to a

30



schedule in which the rate we earn on the AUM declines as the amount of AUM increases, subject to a minimum fee to manage each account. Certain of these clients pay us fees according to the performance of their accounts relative to certain agreed-upon benchmarks, which results in a slightly lower base fee, but allows us to earn higher fees if the relevant investment strategy outperforms the agreed-upon benchmark.

        Pursuant to our sub-investment advisory agreements, we are generally paid a management fee according to a schedule, in which the rate we earn on the AUM declines as the amount of AUM increases. Certain of these funds pay us fixed rate management fees. Due to the substantially larger account size of certain of these accounts, the average advisory fees we earn on them, as a percentage of AUM, are lower than the advisory fees we earn on our separately-managed accounts.

        The majority of advisory fees we earn on separately-managed accounts are based on the value of AUM at a specific date on a quarterly basis, either in arrears or advance. Advisory fees on certain of our separately-managed accounts, and with respect to most of the mutual funds that we sub-advise, are calculated based on the average of the monthly or daily market value. Advisory fees are also adjusted for any cash flows into or out of a portfolio, where the cash flow represents greater than 10% of the value of the portfolio. While a specific group of accounts may use the same fee rate, the method used to calculate the fee according to the fee rate schedule may differ as described above.

        Our advisory fees may fluctuate based on a number of factors, including the following:

    changes in AUM due to appreciation or depreciation of our investment portfolios, and the levels of the contribution and withdrawal of assets by new and existing clients;

    distribution of AUM among our investment strategies, which have different fee schedules;

    distribution of AUM between separately-managed accounts and sub-advised funds, for which we generally earn lower overall advisory fees; and

    the level of our performance with respect to accounts on which we are paid incentive fees.

Expenses

        Our expenses consist primarily of compensation and benefits expenses, as well as general and administrative expenses. These expenses may fluctuate due to a number of factors, including the following:

    variations in the level of total compensation expense due to, among other things, bonuses, awards of equity to our employees and members of our operating company, changes in our employee count and mix, and competitive factors; and

    expenses, such as rent, professional service fees and data-related costs, incurred, as necessary, to run our business.

Compensation and Benefits Expense

        Our largest expense is compensation and benefits, which includes the salaries, bonuses, equity-based compensation and related benefits and payroll costs attributable to our members and employees. All compensation and benefits packages, including those of our executive officers, are benchmarked against relevant industry and geographic peer groups in order to attract and retain qualified personnel. We have experienced a general decrease in cash compensation and benefits expense commensurate with lower revenue-based variable compensation costs and a decline in headcount. The table included

31



in the section below describes the components of our compensation expense for the three and nine months ended September 30, 2008 and 2007:

 
  For the Three Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Cash Compensation and Other Benefits

 
$

7,888
 
$

8,807
 

Distributions on Compensatory Units

         

Change in Redemption Value of Compensatory Units

         

Acceleration of Vesting of Compensatory Units

         

Other Non-Cash Compensation

    272      
           
 

Total Compensation and Benefits Expense

  $ 8,160   $ 8,807  
           

 

 
  For the Nine Months
Ended September 30,
 
 
  2008   2007  
 
  (in thousands)
 

Cash Compensation and Other Benefits

 
$

24,868
 
$

26,239
 

Distributions on Compensatory Units

        12,087  

Change in Redemption Value of Compensatory Units

        15,969  

Acceleration of Vesting of Compensatory Units

        64,968  

Other Non-Cash Compensation

    905     1,950  
           
 

Total Compensation and Benefits Expense

  $ 25,773   $ 121,213  
           

        As discussed further in Note 14 to our consolidated financial statements, the operating company issued compensatory units to employees and members which had redemption features that required them to be classified as liabilities in the consolidated statements of financial condition prior to March 31, 2007. Until this date, distributions on the compensatory units outstanding, and changes in these units' redemption values, were recorded as compensation and benefits expense. As of March 31, 2007, the effective date of the amendment to the Operating Agreement to eliminate the operating company's obligation to redeem units under any circumstance, the unit-based compensation awards previously categorized as liabilities were reclassified as equity. Further, as of March 31, 2007, the operating company accelerated the vesting of all compensatory units then subject to vesting. Subsequent to this date, distributions on these units are not considered a component of compensation and benefits expense and are instead recorded as a direct reduction of members' capital.

        On January 1, 2007, we adopted the PIM LLC 2006 Equity Incentive Plan, pursuant to which we have issued restricted units, and options to acquire units, in our operating company, both of which vest ratably over a four-year period. We used a fair-value method in recording the compensation expense associated with the granting of these restricted units, and options to acquire units, to new and existing members under the PIM LLC 2006 Equity Incentive Plan. Under this method, compensation expense is measured at the grant date based on the estimated fair value of the award and is recognized over the award's vesting period. The fair value of the units is be determined by reference to the market price of our Class A common stock on the date of grant, since these units are exchangeable for shares of our Class A common stock on a one-for-one basis. The fair value of the options to acquire units will be determined by using an appropriate option pricing model on the grant date.

        On January 1, 2007, we instituted a deferred compensation plan, in which employees who earn in excess of $600,000 per year are required to defer a portion of their compensation in excess of this amount. These deferred amounts may be invested, at the employee's discretion, in certain of our investment strategies, restricted phantom units of our operating company, or money market funds. All

32



of these deferred amounts vest ratably over a four-year period beginning January 1, 2008 and, therefore, will be reflected in our expenses over this period. Accordingly, our 2007 cash compensation expense was lower than it would have been had we not instituted a deferred compensation plan. For the four-year period beginning January 1, 2008, we expect the non-cash portion of our compensation expense associated with this deferred compensation plan to increase each successive year to the extent that these and subsequently deferred amounts are amortized through income.

General and Administrative Expenses

        General and administrative expenses include professional and outside services fees, office expenses, depreciation and the costs associated with operating and maintaining our research, trading and portfolio accounting systems. Our occupancy-related costs and professional services expenses, in particular, generally increase or decrease in relative proportion to the overall size and scale of our business operations.

        As a result of our offering on October 30, 2007, we have incurred and expect to incur, additional expenses associated with being a public company for, among other things, director and officer insurance, director fees, SEC reporting and compliance (including Sarbanes-Oxley compliance), transfer agent fees, professional fees and other similar expenses. These additional expenses have and will reduce our net income.

Other Income/(Expense)

        Other income/(expense) is derived primarily from interest income generated on our excess cash balances, investment income arising from our investments in various private investment vehicles that we employ to incubate new strategies, interest expense on our amended Credit Agreement, and mark-to-market movements on our swap agreement. Other income/(expense) is also affected by changes in our estimates of the liability incurred to our selling shareholders subsequent to our reorganization and offering on October 30, 2007. We expect the interest and investment components of other income, in the aggregate, to fluctuate based on market conditions and the performance of our investment strategies.

Non-Controlling Interests

        Our operating company has historically consolidated the results of operations of the private investment partnerships over which we exercise a controlling influence. After our reorganization, we became the sole managing member of our operating company and now control its business and affairs and, therefore, consolidate its financial results with ours. In light of our employees' and outside investors' interest in our operating company, we have reflected their membership interests as a non-controlling interest in our consolidated financial statements. As a result, subsequent to October 30, 2007, our income is generated by our economic interest in our operating company's net income. As of September 30, 2008, the holders of Class A common stock (through the Company) and the holders of Class B units of the operating company held approximately 9.6% and 90.4%, respectively, of the economic interests in the operations of the business.

Provision for Income Tax

        While our operating company has historically not been subject to U.S. federal and certain state income taxes, it has been subject to New York City UBT. As a result of our reorganization, we are now subject to taxes applicable to C-corporations. As such, our effective tax rate, and the absolute dollar amount of our tax expense, has increased as a result of our reorganization. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount expected to be realized.

33


Interest on Mandatorily Redeemable Units

        Until the amendment of its Operating Agreement on March 31, 2007, the operating company recorded a net liability for its capital units equal to the accumulated redemption value as of the balance sheet date of all such outstanding units. This liability also included any undistributed earnings attributable to such units. As such, interest on mandatorily redeemable units included distributions made on capital units outstanding, as well as the incremental increases or decreases in the redemption values of these units. Distributions were generally paid on the operating company's income before non-cash compensation charges. Redemption values were determined based on fair value.

        Prior to March 31, 2007, capital units were required to be redeemed on the death of a member. Effective March 31, 2007, the operating company's Operating Agreement was amended to eliminate its obligation to redeem units under any circumstance. Since all capital units thereafter had only equity characteristics, neither distributions, nor subsequent incremental changes to these units' value, were charged against income subsequent to the effective date of the amendment. The $16.6 million charge recorded in 2007 represents the distributions and incremental changes to these units' fair value through March 31, 2007.

Operating Results

General

        Our earnings and cash flows are heavily dependent upon prevailing financial market conditions. Significant increases or decreases in the various securities markets, particularly the equities markets, can have a material impact on our results of operations, financial condition, and cash flows.

        The global financial crisis that began in 2007 worsened during the third quarter of 2008, and was characterized by volatility of the worldwide capital and credit markets, falling real estate prices, and rising unemployment, all of which have had a negative impact on the financial markets and, therefore, the performance of our investment strategies. Our AUM declined by $13.4 billion, or 46.4%, from $28.9 billion at September 30, 2007, to $15.5 billion at September 30, 2008, due to negative performance of $9.6 billion and net outflows of $3.8 billion. We experienced net outflows of AUM from our sub-advised accounts of $1.0 billion for the nine months ended September 30, 2008, attributable in part to the weaker performance of our sub-advised funds compared to that of our peers. Similarly, we experienced net outflows of $1.0 billion in our separately-managed accounts for the nine months ended September 30, 2008. Prior to the latter half of 2007, our AUM had grown significantly as a result of several factors including, among others, the exceptional investment performance for the since inception, five-year and three-year periods for each of our investment strategies.

        Our average AUM fluctuates based on changes in the market value of accounts advised and sub-advised by us and on fund flows. Accordingly, revenues during 2008 are expected to decline from the comparable 2007 periods to the extent that the markets continue to be unfavorable for our value investment strategy, and results in our inability to increase our AUM. A decrease in revenue results in lower operating income and net income.

        We expect that we will experience continued pressure on our operating margins in the future if AUM continues to decline. We expect our operating expenses, exclusive of unit-based compensation charges, to decline modestly in 2008 from the comparable 2007 periods, as we identify and implement potential cost savings opportunities.

34


Assets Under Management and Flows

        The change in AUM in our separately-managed accounts and our sub-advised accounts for the three and nine months ended September 30, 2008 and 2007 is described below:

 
  For the Three
Months
Ended September 30,
 
Assets Under Management
  2008   2007  
 
  (in billions)
 

Separately-Managed Accounts

             
 

Beginning of Period Assets

  $ 11.4   $ 16.5  
   

Net Flows

    (1.4 )   0.7  
   

Appreciation

    (0.6 )   (1.2 )
           
 

End of Period Assets

  $ 9.4   $ 16.0  
           

Sub-Advised Accounts

             
 

Beginning of Period Assets

  $ 7.1   $ 14.1  
   

Net Flows

    (0.3 )   (0.3 )
   

Appreciation

    (0.7 )   (0.9 )
           
 

End of Period Assets

  $ 6.1   $ 12.9  
           

Total

             
 

Beginning of Period Assets

  $ 18.5   $ 30.6  
   

Net Flows

    (1.7 )   0.4  
   

Appreciation

    (1.3 )   (2.1 )
           
 

End of Period Assets

  $ 15.5   $ 28.9  
           

 

 
  For the Nine
Months
Ended September 30,
 
Assets Under Management
  2008   2007  
 
  (in billions)
 

Separately-Managed Accounts

             
 

Beginning of Period Assets

  $ 14.0   $ 14.5  
   

Net Flows

    (1.0 )   1.5  
   

Appreciation

    (3.6 )   0.0  
           
 

End of Period Assets

  $ 9.4   $ 16.0  
           

Sub-Advised Accounts

             
 

Beginning of Period Assets

  $ 9.6   $ 12.8  
   

Net Flows

    (1.0 )   0.2  
   

Appreciation

    (2.5 )   (0.1 )
           
 

End of Period Assets

  $ 6.1   $ 12.9  
           

Total

             
 

Beginning of Period Assets

  $ 23.6   $ 27.3  
   

Net Flows

    (2.0 )   1.7  
   

Appreciation

    (6.1 )   (0.1 )
           
 

End of Period Assets

  $ 15.5   $ 28.9  
           

35


        At September 30, 2008, our $15.5 billion of AUM were invested in eleven value-oriented investment strategies which represent distinct capitalization segments of the U.S and international markets. The following table describes the allocation of our AUM as of September 30, 2008 among our seven largest investment strategies and the aggregate of our other investment strategies:

Investment Strategy
  AUM at
September 30, 2008
 
 
  (in billions)
 

Large Cap Value

 
$

8.1
 

Value Service

    3.0  

Global Value

    2.5  

Small Cap Value

    0.8  

International Value

    0.4  

Mid Cap Value

    0.3  

All Cap Value

    0.1  

Other Strategies (1)

    0.3  
       
 

Total

  $ 15.5  
       

      (1)
      Our four other investment strategies are: Financial Opportunities Service, Diversified Value, European Value, and Mega Cap Value.

Three Months Ended September 30, 2008 versus September 30, 2007

        At September 30, 2008, the Company managed $15.5 billion in total assets, a decrease of $13.4 billion, or 46.4%, from $28.9 billion at September 30, 2007. The decrease year-over-year in AUM was due largely to $9.6 billion in market depreciation and net outflows of $3.8 billion.

        The Company managed $9.4 billion in separately-managed accounts and $6.1 billion in sub-advised accounts, for a total of $15.5 billion in assets at September 30, 2008. At September 30, 2007, the Company managed $16.0 billion in separately-managed accounts and $12.9 billion in sub-advised accounts, for a total of $28.9 billion in assets. Assets in separately-managed accounts decreased by $2.0 billion, or 17.5%, during the three months ended September 30, 2008, due to $1.4 billion in net outflows and $0.6 billion in market depreciation. This compared to a decrease in separately managed accounts of $0.5 billion, or 3.0%, during the three months ended September 30, 2007, which resulted from $1.2 billion in market depreciation, offset by $0.7 billion of net inflows. Assets in our sub-advised funds decreased by $1.0 billion, or 14.1%, during the three months ended September 30, 2008, as a result of $0.7 billion of market depreciation and $0.3 in net outflows. This compared to a decrease in sub-advised accounts of $1.2 billion, or 8.5%, during the three months ended September 30, 2007, due to $0.9 billion of market depreciation and $0.3 billion in net outflows.

Nine Months Ended September 30, 2008 versus September 30, 2007

        At September 30, 2008, the Company managed $15.5 billion in total assets, a decrease of $13.4 billion, or 46.4%, from $28.9 billion at September 30, 2007. The decrease year-over-year in AUM was due largely to $9.6 billion in market depreciation and net outflows of $3.8 billion.

        The Company managed $9.4 billion in separately-managed accounts and $6.1 billion in sub-advised accounts, for a total of $15.5 billion in assets at September 30, 2008. At September 30, 2007, the Company managed $16.0 billion in separately-managed accounts and $12.9 billion in sub-advised accounts, for a total of $28.9 billion in assets. Assets in separately-managed accounts decreased by $4.6 billion, or 32.9%, during the nine months ended September 30, 2008, due to $3.6 billion in market depreciation and $1.0 billion in net outflows. This compared to an increase in separately-managed accounts of $1.5 billion, or 10.3%, during the nine months ended September 30, 2007, which resulted

36



from $1.5 billion in net inflows. Assets in our sub-advised funds decreased by $3.5 billion or 36.5%, during the nine months ended September 30, 2008, as a result of $2.5 billion of market depreciation and $1.0 billion in net outflows. This compared to an increase in sub-advised accounts of $0.1 billion, or 0.8%, during the nine months ended September 30, 2007, due to $0.1 billion of market depreciation, offset by $0.2 billion of net inflows.

        At September 30, 2008, separately managed accounts represented 60.6% of our total AUM, as compared to 55.4% at September 30, 2007. At September 30, 2008, our Global Value and International Value investment strategies accounted for 18.7% of our AUM, compared to 12.1% at September 30, 2007.

Revenues

        Our revenues from advisory fees earned on our separately-managed accounts and our sub-advised accounts for the three and nine months ended September 30, 2008 and 2007 is described below:

 
  For the Three Months
Ended September 30,
 
Revenue
  2008   2007  
 
  (in millions)
 

Separately-Managed Accounts

 
$

18.2
 
$

26.6
 

Sub-Advised Accounts

    6.9     13.6  
           
 

Total

  $ 25.1   $ 40.2  
           

 

 
  For the Nine Months
Ended September 30,
 
Revenue
  2008   2007  
 
  (in millions)
 

Separately-Managed Accounts

 
$

60.4
 
$

75.6
 

Sub-Advised Accounts

    23.0     36.8  
           
 

Total

  $ 83.4   $ 112.4  
           

Three Months Ended September 30, 2008 versus September 30, 2007

        Our total revenue decreased $15.1 million, or 37.6%, to $25.1 million for the three months ended September 30, 2008, from $40.2 million for the three months ended September 30, 2007. This change was driven primarily by a reduction in weighted-average AUM, which decreased $11.8 billion, or 40.1%, to $17.6 billion for the three months ended September 30, 2008 from $29.4 billion for the three months ended September 30, 2007, offset modestly by an increase in our weighted average fees.

        Our weighted average fees were 0.569% and 0.547% for the three months ended September 30, 2008 and 2007, respectively. Weighted-average assets in separately-managed accounts decreased $5.2 billion, or 32.5%, to $10.8 billion for the three months ended September 30, 2008, from $16.0 billion for the three months ended September 30, 2007, and had weighted average fees of 0.671% and 0.663% for the three months ended September 30, 2008 and 2007, respectively. Weighted-average assets in sub-advised accounts decreased $6.6 billion, or 49.3%, to $6.8 billion for the three months ended September 30, 2008, from $13.4 billion for the three months ended September 30, 2007, and had weighted average fees of 0.406% and 0.408% for the three months ended September 30, 2008 and 2007, respectively.

Nine Months Ended September 30, 2008 versus September 30, 2007

        Our total revenue decreased $29.0 million, or 25.8%, to $83.4 million for the nine months ended September 30, 2008, from $112.4 million for the nine months ended September 30, 2007. This change

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was driven primarily by a reduction in weighted-average AUM, which decreased $9.0 billion, or 30.9%, to $20.1 billion for the nine months ended September 30, 2008, from $29.1 billion for the nine months ended September 30, 2007, offset modestly by an increase in our weighted average fees.

        Our weighted average fees were 0.551% and 0.515% for the nine months ended September 30, 2008 and 2007, respectively. Weighted-average assets in separately-managed accounts decreased $3.3 billion, or 21.0%, to $12.4 billion for the nine months ended September 30, 2008, from $15.7 billion for the nine months ended September 30, 2007, and had weighted average fees of 0.650% and 0.643% for the nine months ended September 30, 2008 and 2007, respectively. Weighted-average assets in sub-advised accounts decreased $5.7 billion, or 42.5%, to $7.7 billion for the nine months ended September 30, 2008, from $13.4 billion for the nine months ended September 30, 2007, and had weighted average fees of 0.395% and 0.365% for the nine months ended September 30, 2008 and 2007, respectively.

Expenses

        Our operating expenses are driven primarily by our compensation costs. The table below describes the components of our compensation expense for the three and nine months ended September 30, 2008 and 2007. Much of the historical variability in our compensation costs had been driven by distributions made on our compensatory units then outstanding, and the incremental increases or decreases in their redemption value subsequent to their grant date. As of March 31, 2007, these items are no longer reflected in compensation expense.

 
  For the Three Months Ended September 30,  
 
  2008   2007  
 
  (in thousands)
 

Cash Compensation and Other Benefits

 
$

7,888
 
$

8,807
 

Distributions on Compensatory Units

         

Change in Redemption Value of Compensatory Units

         

Acceleration of Vesting of Compensatory Units

         

Other Non-Cash Compensation

    272      
           
 

Total Compensation and Benefits Expense

  $ 8,160   $ 8,807  
           

 

 
  For the Nine Months Ended September 30,  
 
  2008   2007  
 
  (in thousands)
 

Cash Compensation and Other Benefits

 
$

24,868
 
$

26,239
 

Distributions on Compensatory Units

        12,087  

Change in Redemption Value of Compensatory Units

        15,969  

Acceleration of Vesting of Compensatory Units

        64,968  

Other Non-Cash Compensation

    905     1,950  
           
 

Total Compensation and Benefits Expense

  $ 25,773   $ 121,213  
           

Three Months Ended September 30, 2008 versus September 30, 2007

        Total operating expenses decreased by $1.0 million, or 8.5%, to $10.8 million for the three months ended September 30, 2008, from $11.8 million for the three months ended September 30, 2007, primarily as a result of lower revenue-based variable compensation costs and decreased professional and data systems costs arising from ongoing efforts to reduce overall operating expenditures.

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        Compensation and benefits expense decreased by $0.6 million, or 6.8%, to $8.2 million for the three months ended September 30, 2008, from $8.8 million for the three months ended September 30, 2007, primarily as a result of a reduction in variable compensation costs and staffing decreases, offset modestly by deferred compensation amortization, which commenced on January 1, 2008.

        General and administrative expenses decreased by $0.4 million, or 13.3%, to $2.6 million for the three months ended September 30, 2008, from $3.0 million for the three months ended September 30, 2007. This decrease was mainly attributable to a $0.3 million decrease in professional fees.

Nine Months Ended September 30, 2008 versus September 30, 2007

        Total operating expenses decreased by $94.7 million, or 73.5%, to $34.1 million for the nine months ended September 30, 2008, from $128.8 million for the nine months ended September 30, 2007. This decrease was primarily attributable to a decrease in compensation and benefits expense resulting from the $65.0 million charge taken in March 2007 associated with the acceleration of compensatory unit vesting that was not replicated in 2008. This decrease was also attributable to the amendment of the Operating Agreement, on March 31, 2007, that removed all mandatory redemption provisions related to our membership units.

        Compensation and benefits expense decreased by $95.4 million, or 78.7%, to $25.8 million for the nine months ended September 30, 2008, from $121.2 million for the nine months ended September 30, 2007. This decrease was primarily attributable to the $94.6 million in unit-based compensation charges incurred in the nine months ended September 30, 2007 that was not replicated in 2008.

        General and administrative expenses increased by $0.7 million, or 9.2%, to $8.3 million for the nine months ended September 30, 2008, from $7.6 million for the nine months ended September 30, 2007. This increase was mainly attributable to a $0.4 million increase in professional and outside services fees and a $0.3 million increase in insurance costs associated with our reorganization and ensuing status as a public company.

Other Income/(Expense)

Three Months Ended September 30, 2008 versus September 30, 2007

        Other income/(expense) was income of $49.3 million for the third quarter of 2008 and consisted primarily of a $53.3 million credit to other income associated with the reduction in the liability to selling shareholders on September 30, 2008. This was partially offset by $4.0 million in losses related to the negative performance of our investments in our own products. Other income/(expense) was an expense of $1.6 million for the three months ended September 30, 2007, and consisted primarily of $1.2 million in losses related to the negative performance of our investments in our own products and $0.4 million in net interest expense.

Nine Months Ended September 30, 2008 versus September 30, 2007

        Other income/(expense) was income of $41.5 million for the nine months ended September 30, 2008, and consisted primarily of a $53.3 million credit to other income associated with the reduction in the liability to selling shareholders on September 30, 2008. This was partially offset by $11.0 million in losses related to the negative performance of our investments in our own products. Other income/(expense) was income of $0.3 million for the nine months ended September 30, 2007, and consisted primarily of net interest and dividend income, offset partially by the negative performance of our investments in our own products.

Provision for Income Taxes

Three Months Ended September 30, 2008 versus September 30, 2007

        The provision for income taxes increased by $62.7 million, from $1.3 million for the three months ended September 30, 2007, to $64.0 million for the three months ended September 30, 2008, due to the

39



establishment, on September 30, 2008, of a $62.7 million valuation allowance assessed against the deferred tax asset recorded as part of our initial public offering. A comparison of the effective tax rate for the three months ended September 30, 2008 to the effective tax rate for the three months ended September 30, 2007 is not meaningful due to the valuation allowance and the effect of our liability for C-corporation taxation in 2008.

Nine Months Ended September 30, 2008 versus September 30, 2007

        The provision for income taxes increased by $63.1 million, from $3.9 million for the nine months ended September 30, 2007, to $67.0 million for the nine months ended September 30, 2008, due primarily to the establishment, on September 30, 2008, of a $62.7 million valuation allowance assessed against the deferred tax asset recorded as part of our initial public offering. A comparison of the effective tax rate for the nine months ended September 30, 2008 to the effective tax rate for the nine months ended September 30, 2007 is not meaningful due to the effect of the valuation allowance and the effect of our liability for C-corporation taxation in 2008, and the equity-based compensation charges of $65.0 million in 2007. This charge was not deductible for tax purposes.

Non-Controlling Interests

Three Months Ended September 30, 2008 versus September 30, 2007

        Non-controlling interests were $8.4 million for the three months ended September 30, 2008, compared to a negative $0.7 million for the three months ended September 30, 2007. This change primarily reflects our employees' and outside investors' interest in our operating company subsequent to the consummation of our reorganization on October 30, 2007. This change also reflects, to a lesser extent, the impact to our non-controlling interests of the less favorable investment performance of the private investment vehicles we manage during the three months ended September 30, 2008, compared to the three months ended September 30, 2007.

Nine Months Ended September 30, 2008 versus September 30, 2007

        Non-controlling interests were $30.9 million for the nine months ended September 30, 2008, compared to a negative $0.1 million for the nine months ended September 30, 2007. This change primarily reflects our employees' and outside investors' interest in our operating company subsequent to the consummation of our reorganization on October 30, 2007. This change also reflects, to a lesser extent, the impact to our non-controlling interests of the less favorable investment performance of the private investment vehicles we manage during the nine months ended September 30, 2008, compared to the nine months ended September 30, 2007.

Interest on Mandatorily Redeemable Units

Three Months Ended September 30, 2008 versus September 30, 2007

        There were no charges associated with interest on mandatorily redeemable units for the three months ended September 30, 2008 and 2007. As of March 31, 2007, the Operating Agreement was amended to remove all mandatory redemption provisions related to our membership units. The removal of these provisions caused our membership units to be classified as equity, and neither distributions, nor subsequent changes to these units' value, were charged to income following the amendment.

Nine Months Ended September 30, 2008 versus September 30, 2007

        Interest on mandatorily redeemable units decreased by $16.6 million to $0.0 million for the nine months ended September 30, 2008, compared to $16.6 million for the nine months ended September 30, 2007. The decrease was due to the amendment of the Operating Agreement as of March 31, 2007 to remove all mandatory redemption provisions related to our membership units. The removal of these provisions caused our membership units to be classified as equity, and neither distributions, nor subsequent changes to these units' value, were charged to income following the amendment.

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Liquidity and Capital Resources

        Historically, the working capital needs of our business have primarily been met through cash generated by our operations. At September 30, 2008, our cash and cash equivalents were $31.8 million, inclusive of $8.0 million in cash held by our consolidated investment partnerships. We expect that our cash and liquidity requirements in the next twelve months, and over the long term, will be met primarily through cash generated by our operating company's operations. On July 23, 2007, our operating company borrowed $60.0 million pursuant to a three-year term loan facility (the "Credit Agreement"), the proceeds of which were used to finance a special one-time distribution to the members of our operating company as of that date. Concurrently, our operating company also obtained a $20.0 million revolving credit facility to finance our short-term working capital needs. On February 11, 2008, our operating company entered into Amendment No. 1 to the Credit Agreement. The amendment changed a number of Credit Agreement provisions, including: (i) the minimum AUM financial covenant was reduced from $20.0 billion to $15.0 billion; (ii) the minimum Earnings Before Interest, Taxes, Depreciation and Amortization, or EBITDA, financial covenant for each four quarter period was reduced from $60.0 million to $40.0 million; (iii) the capacity of the revolving credit facility was reduced from $20.0 million to $5.0 million; and (iv) the interest rate was increased from LIBOR plus 1.0% to LIBOR plus 1.5%. In addition, two mandatory prepayment provisions were added: (a) term loan amortization was required beginning in any period when AUM was less than $20 billion and ending when AUM was greater than $21.5 billion, and (b) a 50% excess cash flow sweep was required if AUM was below $17.5 billion. During the three months ended June 30, 2008, our assets under management fell below $20 billion. Pursuant to the provisions of the term loan, as amended, our operating company was required to make an amortization payment of $3.0 million on June 30, 2008.

        On September 19, 2008, our operating company entered into Amendment No. 2 to its Credit Agreement. The agreement, as amended, required the operating company to maintain assets under management of at least $12.0 billion and to make minimum quarterly amortization payments of $2.0 million until maturity, which was extended to July 23, 2011. Additionally, the LIBOR interest rate option was increased to LIBOR plus 1.75% and the EBITDA financial covenant stipulated in Amendment No.1 was eliminated. The excess cash flow sweep was also increased to 75% of excess cash flow. On September 22, 2008, our operating company made a required amortization payment of $5.0 million as a condition precedent to the effectiveness of this amendment. On September 30, 2008, our operating company made a quarterly amortization payment of $5.0 million.

        On October 28, 2008, our operating company entered into Amendment No. 3 to its Credit Agreement. This amendment provided for the following changes to the Credit Agreement, among others:

    (i)
    the minimum assets under management financial covenant was eliminated;

    (ii)
    the excess cash flow mandatory repayment was eliminated;

    (iii)
    the commitments under the revolving credit facility were reduced from $3.0 million to approximately $1.8 million;

    (iv)
    with respect to loans borrowed at base rate, the margin added to base rate was increased from 0.00% to 0.75%; with respect to loans borrowed at LIBOR, the margin was not modified;

    (v)
    certain additional restrictions were placed on the operating company's ability to make Restricted Payments (as defined in the Credit Agreement), including dividends; and

    (vi)
    amendments to certain covenants in order to permit the incurrence of subordinated debt by the operating company.

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        Conditions precedent to the execution of this amendment included, among others, (i) the repayment by the operating company of $25.0 million of the $47.0 million principal amount outstanding under the Credit Agreement as of October 28, 2008, and (ii) the grant by the operating company and one of its subsidiaries of a security interest in their accounts receivable.

        In order to fund the $25.0 million repayment by our operating company, we used $9.0 million in cash reserves and the proceeds from the issuance of an aggregate of $16.0 million principal amount of Senior Subordinated Notes (collectively, the "Notes") to entities established by Richard Pzena, our Company's Chief Executive Officer, for the benefit of certain of his family members, an entity controlled by a Company director, and a former employee.

        The Notes were issued on October 28, 2008. Each of these Notes is unsecured, has a ten-year maturity and bears interest at 6.30% per annum. The provisions of the Notes include a restricted payments covenant (including dividend payments), a prohibition on incurring indebtedness which is not subordinated to the Notes, and events of default based on failure to make payments, bankruptcy, change of control and acceleration of material indebtedness. In addition, the Notes are subordinated to the repayment in full of the loans under the Credit Agreement.

        We expect to fund the working capital needs of our business in the next twelve months, and over the long term, primarily through cash generated from operations.

        Prior to its reorganization on October 30, 2007, Pzena Investment Management, LLC made a distribution to its existing members representing all of the remaining undistributed earnings generated through the date of the reorganization, less any amounts required to fund its working capital needs.

        We anticipate that distributions to the members of our operating company, which consisted of 26 of our employees as of September 30, 2008, two outside investors and us, will continue to be a material use of our cash resources and will vary in amount and timing based on our operating results and dividend policy. We are a holding company and have no material assets other than our ownership of membership interests in our operating company. As a result, we depend upon distributions from our operating company to pay any dividends we may declare to our Class A stockholders. We cause our operating company to make distributions to us in an amount sufficient to cover such dividends, if any, declared by us. Our dividend policy has certain risks and limitations, particularly with respect to liquidity. Although we may pay dividends according to our dividend policy, we may not pay dividends according to our policy, or at all, if, among other things, we do not have the cash necessary to pay our intended dividends. Under the terms and conditions of our amended Credit Agreement and Senior Subordinated Notes, we have suspended our regular dividend payment to shareholders. In the future, our board of directors may, in its discretion and subject to the Company's operating results, debt agreements and applicable law, reinstate the dividend at an amount to be determined by it. To the extent we do not have cash on hand sufficient to pay dividends in the future, we may decide not to pay dividends. By paying cash dividends rather than investing that cash in our future growth, we risk slowing the pace of our growth, or not having a sufficient amount of cash to fund our operations or unanticipated capital expenditures, should the need arise.

        Our purchase of membership units of our operating company concurrently with our initial public offering, and the future exchanges by holders of Class B units of our operating company for shares of our Class A common stock (pursuant to the exchange rights provided for in the Operating Company's operating agreement), has resulted in, and are expected to continue to result in, increases in our share of the tax basis of the tangible and intangible assets of our operating company at the time of our acquisition and these future exchanges, which will increase the tax depreciation and amortization deductions that otherwise would not have been available to us. These increases in tax basis and tax depreciation and amortization deductions have reduced and are expected to continue to reduce, the amount of tax that we would otherwise be required to pay in the future. We have entered into a tax receivable agreement with the current members of our operating company, the one member of our

42



operating company immediately prior to our initial public offering who sold all of its membership units to us in connection with our initial public offering, and any future holders of Class B units, that requires us to pay them 85% of the amount of cash savings, if any, in U.S. federal, state and local income tax that we actually realize (or are deemed to realize in the case of an early termination payment by us, or a change in control, as described in the tax receivable agreement) as a result of the increases in tax basis described above and certain other tax benefits related to entering into the tax receivable agreement, including tax benefits attributable to payments under the tax receivable agreement.

        In October 2008, the selling unitholders agreed to waive any payments that we are or will be required to make to them for the 2008 and 2009 tax years pursuant to the tax receivable agreement.

Cash Flows

        Operating activities provided $16.3 million for the three months ended September 30, 2008, and provided $24.6 million for the three months ended September 30, 2007. This decline in cash flows from operating activities was driven primarily by a decrease in average AUM from $29.4 billion for the three months ended September 30, 2007, to $17.6 billion for the three months ended September 30, 2008, which had a corresponding negative impact on total revenues.

        For the nine months ended September 30, 2008, operating activities provided $48.7 million, and provided $46.2 million for the nine months ended September 30, 2007. This change is due primarily to the fact that beginning on March 31, 2007, the effective date of the amendment of the operating company's Operating Agreement to eliminate its obligation to redeem a member's units therein under any circumstance, as well as the acceleration of the vesting of all compensatory units then subject to vesting, distributions on all membership units are classified as financing activities in our consolidated statements of cash flows. As a result, net cash provided by operating activities has increased, and net cash provided by financing activities has decreased beginning on March 31, 2007. This increase was partially offset by a decline in average AUM, which had a corresponding negative impact on total revenues.

        Investing activities consist primarily of investments in affiliates and other investment partnerships, as well as capital expenditures. Investing activities used $0.2 million and $0.1 million for the three months ended September 30, 2008 and 2007, respectively. Investing activities used $0.2 million and $1.5 million for the nine months ended September 30, 2008 and 2007, respectively. This decrease was due primarily to capital expenditures associated with the build-out of additional space in our New York office, which occurred during 2007.

        Financing activities consist primarily of contributions from members and contributions from, and distributions to, non-controlling interests. Financing activities used $21.6 million and $4.4 million for the three months ended September 30, 2008 and 2007, respectively. The increase in cash used in financing activities was attributable primarily to the $10.0 million in Credit Agreement amortization payments that were made in the three months ended September 30, 2008, and the $4.1 million reduction in net contributions from non-controlling interests. Financing activities used $43.9 million and $45.6 million for the nine months ended September 30, 2008 and 2007, respectively. This decrease used in financing activities was due primarily to a $16.5 million net reduction in distributions to members and dividends to shareholders, offset largely by $13.0 million in Credit Agreement amortization payments that were made in the nine months ended September 30, 2008.

Critical Accounting Policies and Estimates

        The preparation of our consolidated financial statements in accordance with U.S. generally accepted accounting principles requires management to make estimates and judgments that affect our reported amounts of assets, liabilities, revenues and expenses and related disclosure of contingent assets

43



and liabilities. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under current circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily available from other sources. We evaluate our estimates on an ongoing basis. Actual results may differ from these estimates under different assumptions or conditions.

        Accounting policies are an integral part of our financial statements. A thorough understanding of these accounting policies is essential when reviewing our reported results of operations and our financial condition. Management believes that the critical accounting policies and estimates discussed below involve additional management judgment due to the sensitivity of the methods and assumptions used.

Unit-based Compensation

        On January 1, 2006, we adopted Statement of Financial Accounting Standards No. 123(R), Share-Based Payment ("FAS 123(R)"), which requires the recognition of the cost of equity-based compensation based on the fair value of the award as of its grant date. Prior to the adoption of FAS 123(R), we accounted for our unit-based compensation in accordance with the provisions of Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees ("APB 25"), and related interpretations. The adoption of FAS 123(R) did not have a material effect on the results of operations or financial condition of the Company. Pursuant to FAS 123(R), we recognize compensation expense associated with the granting of equity-based compensation based on the fair value of the award as of its grant date if it is classified as an equity instrument, and on the changes in settlement amount for awards that are classified as liabilities. Prior to March 31, 2007, our compensatory membership unit-based awards had repurchase features that required us to classify them as liabilities. Accordingly, distributions paid on these membership units were classified as compensation expense. In addition, changes to their redemption values subsequent to their grant dates have been included in compensation expense. As of March 31, 2007, we accelerated the vesting of all compensatory units then subject to vesting. The one-time charge associated with this acceleration, approximately $65.0 million, was recorded on March 31, 2007. Our Operating Agreement was further amended as of March 31, 2007, such that our operating company will no longer be required to redeem any membership units for cash upon a member's termination or death. Accordingly, beginning with our interim financial statements for the three months ended June 30, 2007, our operating company is no longer required to include in compensation expense the distributions in respect of these membership units or the change in their redemption value.

Consolidation

        Our policy is to consolidate all majority-owned subsidiaries in which we have a controlling financial interest and variable-interest entities where we are deemed to be the primary beneficiary. We also consolidate non-variable-interest entities which we control as the general partner or managing member. We assess our consolidation practices regularly, as circumstances dictate. All significant inter-company transactions and balances have been eliminated.

        Investments in private investment partnerships in which we have a minority interest and exercise significant influence are accounted for using the equity method. Such investments, if any, are reflected on the consolidated statements of financial condition as investments in affiliates and are recorded at the amount of capital reported by the respective private investment partnerships. Such capital accounts reflect the contributions paid to, distributions received from, and the equity earnings of, the private investment partnerships. The earnings of these private investment partnerships are included in equity in earnings of affiliates in the consolidated statements of operations.

44


Income Taxes

        We are a "C" corporation under the Internal Revenue Code, and thus liable for federal, state and local taxes on the income derived from our economic interest in our operating company. The operating company is a limited liability company that has elected to be treated as a partnership for tax purposes. Our operating company has not made a provision for federal or state income taxes because it is the responsibility of each of the operating company's members (including us) to separately report their proportionate share of the operating company's taxable income or loss. Similarly, the income of our consolidated investment partnerships is not subject to income taxes, as such income is allocated to each partnership's individual partners. The operating company has made a provision for New York City UBT.

        We recognize deferred tax assets and liabilities for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases, net operating loss carryforwards and tax credits. A valuation allowance is maintained for deferred tax assets that we estimate are more likely than not to be unrealizable based on available evidence at the time the estimate is made. Determining the valuation allowance requires significant management judgments and assumptions. In determining the valuation allowance, we use historical and forecasted future operating results, based upon approved business plans, including a review of the eligible carryforward periods, tax planning opportunities and other relevant considerations. Each quarter, we reevaluate our estimate related to the valuation allowance, including our assumptions about future profitability.

        We believe that the accounting estimate related to the $62.7 million valuation allowance is a critical accounting estimate because the underlying assumptions can change from period to period. For example, tax law changes or variances in future projected operating performance could result in a change in the valuation allowance. If we were not able to realize all or part of our net deferred tax assets in the future, an adjustment to our deferred tax assets valuation allowance would be charged to income tax expense in the period such determination was made.

        Management judgment is required in determining our provision for income taxes, evaluating our tax positions and establishing deferred tax assets and liabilities. The calculation of our tax liabilities involves dealing with uncertainties in the application of complex tax regulations. If our estimate of tax liabilities proves to be less than the ultimate assessment, a further charge to earnings would result.

Recently Issued Accounting Pronouncements

        We adopted the provisions of Statement of Financial Accounting Standards No. 157, Fair Value Measurements ("FAS 157"), on January 1, 2008. Our fair value measurements relate to our interest rate swap, as well as our investments in marketable securities and securities sold short, which are primarily exchange-traded securities with quoted prices in active markets. The fair value measurements of the securities have been classified as Level 1. The fair value measurement of the interest rate swap has been classified as Level 2, based upon the market prices for interest rate swaps with similar provisions and forward interest rate curves.

        In February 2007, the FASB issued Statement of Financial Accounting Standards No. 159, The Fair Value Option for Financial Assets and Financial Liabilities ("FAS 159"). FAS 159 permits an entity to elect to measure certain financial instruments and certain other items at fair value with changes in fair value recognized in earnings. FAS 159 is effective for fiscal years beginning after November 15, 2007. Since we chose not to elect this fair value option, the impact of the adoption of this statement was not material.

        In December 2007, the FASB issued Statement of Financial Accounting Standards No. 141 (revised 2007), Business Combinations ("FAS 141R") which replaces Statement of Financial Accounting

45



Standards No. 141, Business Combinations. FAS 141R establishes the principles and requirements for how an acquirer: (i) recognizes and measures in its financial statements the identifiable assets acquired, the liabilities assumed, and any non-controlling interest in the acquiree; (ii) recognizes and measures the goodwill acquired in the business combination or a gain from a bargain purchase; and (iii) discloses the business combination. This Statement applies to all transactions in which an entity obtains control of one or more businesses, including transactions that occur without the transfer of any type of consideration. FAS 141R is effective for us on a prospective basis for all business combinations on or after January 1, 2009, with the exception of the accounting for valuation allowances on deferred taxes and acquired tax contingencies. Early adoption is not allowed. We are in the process of assessing the impact of this standard on the consolidated financial statements of the Company.

        In December 2007, the FASB issued Statement of Financial Accounting Standards No. 160, Noncontrolling Interests in Consolidated Financial Statements—an amendment of ARB No. 51 ("FAS 160"). FAS 160 amends ARB No. 51 and establishes accounting and reporting standards that require non-controlling interests (previously referred to as minority interest) to be reported as a component of equity, changes in a parent's ownership interest while the parent retains its controlling interest be accounted for as equity transactions, and upon a loss of control, retained ownership interest will be remeasured at fair value, with any gain or loss recognized in earnings. FAS 160 is effective for us on January 1, 2009, except for the presentation and disclosure requirements, which will be applied retrospectively. Early adoption is not allowed. We are in the process of assessing the impact of this standard on the consolidated financial statements of the Company.

        In March 2008, the FASB issued Statement of Financial Accounting Standards No. 161, Disclosures about Derivative Instruments and Hedging Activities (" FAS 161 "). FAS 161 is intended to improve financial reporting about derivative instruments and hedging activities by requiring enhanced disclosures to enable investors to better understand their effects on an entity's financial position, financial performance, and cash flows. It is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. We are in the process of assessing the impact of this standard on the consolidated financial statements of the Company.

        In June 2008, the FASB issued EITF 03-6-1, "Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities". The EITF release states that unvested share-based payment awards that contain nonforfeitable rights to dividends or dividend equivalents (whether paid or unpaid) are participating securities and shall be included in the computation of earnings per share pursuant to the two-class method. EITF 03-6-1 is effective for financial statements issued for fiscal years beginning after December 15, 2008, and interim periods within those years. The Company is in the process of assessing the impact of the standard on its consolidated financial statements.

Item 3.     Quantitative and Qualitative Disclosures About Market Risk

Market Risk

        Our exposure to market risk is directly related to our role as investment adviser for the separate accounts we manage and the funds for which we act as sub-investment adviser. All of our revenue for the three and nine months ended September 30, 2008 was derived from advisory fees, which are typically based on the market value of our AUM. Accordingly, a decline in the prices of securities would cause our revenue and income to decline, due to a decrease in the value of the assets we manage. In addition, such a decline could cause our clients to withdraw their funds in favor of investments offering higher returns or lower risk, which would cause our revenue and income to decline further.

        We are also subject to market risk due to a decline in the prices of our investments in affiliates and the value of the holdings of our Consolidated Subsidiaries, both of which consist primarily of

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marketable securities. At September 30, 2008, the fair value of these assets was $27.5 million. Assuming a 10% increase or decrease, the fair value would have increased or decreased by $2.8 million at September 30, 2008.

Interest Rate Risk

        The amounts that our operating company borrowed pursuant to the Credit Agreement described above, and any amounts our operating company borrows under the related revolving credit facility, will accrue interest at variable rates. The operating company entered into an equivalent interest rate swap agreement that commenced on July 23, 2008. The swap, which expires on July 23, 2010, obligates us to pay a 2.825% fixed rate of interest on the notional amount and requires the counterparty to pay us a floating interest rate based on the monthly LIBOR interest rate. The spread on the Credit Agreement is in addition to these amounts. Interest rate changes may, therefore, affect the amount of our interest payments related to any potential differential between the notional amount of the interest rate swap and amounts outstanding under the Credit Agreement, as well as any amounts borrowed under the revolving credit facility. Such changes would correspondingly affect our future earnings and cash flows. In addition, we have not entered any arrangement to hedge our exposure to interest rates from July 23, 2010 to July 23, 2011. For this one year period, interest rate changes would affect our future earnings and cash flows. Based on the consolidated debt obligations that we have as of September 30, 2008, we believe that our hedge would be unaffected in the event that interest rates were to increase by one percentage point.

Item 4T.     Controls and Procedures.

        During the course of their review of our consolidated financial statements as of September 30, 2008, our management, including our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures pursuant to Rule 13a-15 under the Exchange Act as of September 30, 2008. Based on that evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of September 30, 2008, our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) were effective to ensure that information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

        There was no change in our internal control over financial reporting that occurred during the third quarter of 2008 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

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PART II. OTHER INFORMATION

Item 1.    Legal Proceedings.

        In the normal course of business, we may be subject to various legal and administrative proceedings. On November 21, 2007 and January 16, 2008, substantively identical putative class action lawsuits were commenced in the United States District Court for the Southern District of New York against us and Richard S. Pzena, our chief executive officer, seeking remedies under Section 11 of the Securities Act of 1933, as amended. The Court consolidated the lawsuits and appointed co-lead plaintiffs, who filed a consolidated amended complaint. The consolidated amended complaint names as defendants us, Richard S. Pzena, and two of the underwriters of our initial public offering, Goldman Sachs & Co., Inc. and UBS Securities LLC. Plaintiffs seek to represent a class of all persons who purchased or otherwise acquired Class A common stock issued pursuant or traceable to our initial public offering. The consolidated amended complaint alleges that the registration statement and prospectus relating to the initial public offering of our Class A common stock contained material misstatements and omissions and wrongfully failed to disclose net redemptions in the John Hancock Classic Value Fund for which we act as sub-investment advisor. The consolidated amended complaint seeks damages in an unspecified amount including rescission or rescissory damages. The Court granted defendants' motion to dismiss the consolidated amended complaint and, on September 4, 2008, the Court entered a judgment in favor of defendants. Plaintiffs have filed a Notice of Appeal of the Court's judgment to the United States Court of Appeals for the Second Circuit. We believe that the allegations and claims are without merit and we intend to contest these claims vigorously.

Item 1A.    Risk Factors.

         We face a variety of significant and diverse risks, many of which are inherent in our business. Described below are certain risks that we currently believe could materially affect us. Other risks and uncertainties that we do not presently consider to be material, or of which we are not presently aware, may become important factors that affect us in the future. The occurrence of any of the risks discussed below could materially and adversely affect our business, prospects, financial condition, results of operations or cash flow.

Risks Related to Our Business

We depend on Richard S. Pzena, John P. Goetz, A. Rama Krishna and William L. Lipsey and the loss of the services of any of them could have a material adverse effect on us.

        The success of our business depends on the participation of Richard S. Pzena, John P. Goetz, A. Rama Krishna and William L. Lipsey, whom we collectively refer to as our managing principals. Their professional reputations, expertise in investing and relationships with our clients and within the investing community in the U.S. and abroad, are critical elements to executing our business strategy and attracting and retaining clients. Accordingly, the retention of our managing principals is crucial to our future success. There is no guarantee that they will not resign, join our competitors or form a competing company. The terms of the current operating agreement of our operating company restrict each of Messrs. Pzena, Goetz and Lipsey from competing with us or soliciting our clients or other employees during the term of their employment with us and for three years thereafter. Under the terms of his employment agreement, Mr. Krishna has agreed not to compete with us for a period of 18 months following (i) his notice of resignation, which must be given six months prior to the termination of his employment with us pursuant to his agreement, or (ii) the date of any other termination of his employment with us. The penalty for their breach of these restrictive covenants will be the forfeiture of a number of Class B units held by the managing principal that is equal to 50% of the number of membership units collectively held by the managing principal and his permitted transferees as of the earlier of the date of his breach or the termination of his employment, unless our

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board of directors, in its sole discretion, determines otherwise. Although we may also seek specific performance of these restrictive covenants, there can be no assurance that we would be successful in obtaining this relief. Further, after this post-employment restrictive period, we will not be able to prohibit them from competing with us or soliciting our clients or employees. If any of our managing principals were to join a competitor or form a competing company, some of our current clients or other prominent members of the investing community could choose to invest with that competitor rather than us. Furthermore, we do not carry any "key man" insurance that would provide us with proceeds in the event of the death or disability of any of our managing principals. The loss of the services of any of our managing principals could have a material adverse effect on our business and could impact our future performance.

If our investment strategies perform poorly, we could lose clients or suffer a decline in AUM which would impair our revenues and earnings.

        The performance of our investment strategies is one of the most important factors in retaining clients and AUM and competing for new business. If our investment strategies perform poorly, it could impair our earnings because:

    our existing clients might withdraw their funds from our investment strategies, which would cause the level of our advisory fees to decline;

    the level of the performance-based fees paid by certain of our clients, which provides us with a percentage of returns if our investment strategies outperform certain agreed upon benchmarks, would decline;

    third-party financial intermediaries, advisers or consultants may rate our investment products poorly, which may lead our existing clients to withdraw funds from our investment strategies or to the reduction of asset inflows from these third parties or their clients; or

    the mutual funds and other investment funds that we sub-advise may decide not to renew or to terminate the agreements pursuant to which we sub-advise them and we may not be able to replace these relationships.

        In 2006, 2007 and year-to-date 2008, our investment strategies have underperformed their respective benchmarks, and there can be no assurance that such underperformance will not continue. The annualized gross returns (which represents annualized returns prior to payment of advisory fees) of our Large Cap Value strategy (which represented approximately 52% of our AUM as of September 30, 2008) for the 1-year, 3-year, 5-year and since inception (October 2000) periods ended September 30, 2008 were (35.0)%, (7.0)%, 2.8%, and 3.5%, respectively. This compares to the returns of the Russell 1000® Value Index, the market index most commonly used by our clients to compare the performance of our Large Cap Value strategy, during the same periods of (23.6)%, 0.1%, 7.1%, and 3.6%, respectively.

        During periods of declining AUM and revenues, such as we are currently experiencing, there can be no assurance that we will be able to reduce our expenses at a commensurate rate, potentially leading to accelerated profitability declines. Additionally, given the nature of our business, there is a minimum expense base necessary to retain our employees and maintain our operations, and it may be difficult to reduce expenses beyond certain levels.

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Our sub-investment advisory relationships with mutual funds advised by John Hancock Advisers represent a significant source of our revenues, and the termination of these relationships would impair our revenues and earnings.

        We currently act as a sub-investment adviser to the John Hancock Classic Value Fund, the John Hancock Classic Value Fund II, the John Hancock International Classic Value Fund and the John Hancock Classic Value Mega Cap Fund, each of which are SEC-registered mutual funds advised by John Hancock Advisers. Our sub-investment advisory relationships with these four mutual funds represented, in the aggregate, 21.9% and 26.3% of our AUM at September 30, 2008 and December 31, 2007, respectively. For the nine months ended September 30, 2008 and the years ended December 31, 2007, 2006 and 2005, 14%, 20%, 20% and 14%, respectively, of our total revenue was generated from these relationships. Our sub-investment advisory agreement with the John Hancock Classic Value Fund represented all, or substantially all, of this revenue during these periods. There can be no assurance that our agreements with respect to any of these four mutual funds will remain in place. In addition, these agreements would terminate automatically in the event that the investment management agreement between John Hancock Advisers and each individual fund is assigned or terminated. Such a termination of our sub-investment advisory agreements would significantly reduce our revenues and we may not be able to establish relationships with other mutual funds' investment advisers and/or significant institutional separate accounts in order to replace the lost revenues.

Because our clients can reduce the amount of assets we manage for them, or terminate our agreements with them, on short notice, we may experience unexpected declines in revenue and profitability.

        Our investment advisory and sub-investment advisory agreements are generally terminable upon short notice. Our sub-investment advisory agreements with thirteen SEC-registered mutual funds, such as the four mutual funds advised by John Hancock Advisers, each have an initial two-year term and are subject to annual renewal by the fund's board of directors pursuant to the Investment Company Act of 1940, as amended, or the Investment Company Act. Eleven of these thirteen sub-investment advisory agreements are beyond their initial two-year term, including the agreement for the John Hancock Classic Value Fund. Institutional and individual clients, and the funds with which we have sub-investment advisory agreements, can terminate their relationships with us, or reduce the aggregate amount of AUM, for a number of reasons, including investment performance, changes in prevailing interest rates, and financial market performance, or to shift their funds to competitors who may charge lower advisory fee rates, or for no stated reason. Poor performance relative to that of other investment management firms tends to result in decreased investments in our investment strategies, increased withdrawals from our investment strategies and the loss of institutional or individual accounts or sub-investment advisory relationships. In addition, the ability to terminate relationships may allow clients to renegotiate for lower fees paid for asset management services. If our investment advisory agreements are terminated, or our clients reduce the amount of AUM, either of which may occur on short notice, we may experience declines in revenue and profitability.

        We experienced declines in AUM during the past five quarters, and declines in revenue and profitability during the past four quarters, and there can be no assurance that there will not be continued declines in our AUM, revenue and profitability in the future. During the past five quarters, our AUM declined from $30.6 billion at June 30, 2007, to $15.5 billion at September 30, 2008. This decline was due to $11.7 billion in market depreciation and $3.4 billion in net outflows. There was a corresponding decline in revenue and profitability during this period. During the past five quarters, our AUM in separately-managed accounts declined from $16.5 billion at June 30, 2007, to $9.4 billion at September 30, 2008. This decline was due to $6.8 billion in market depreciation and net outflows of $0.3 billion. During the past five quarters, our AUM in sub-advised funds declined from $14.1 billion at June 30, 2007 to $6.1 billion at September 30, 2008. This decline was due to $4.9 billion in market

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depreciation and net outflows of $3.1 billion. Our advisory agreement with the John Hancock Classic Value Fund represented the majority of our sub-advised assets during this period.

Difficult market conditions can adversely affect our business by reducing the market value of the assets we manage or causing our clients to withdraw funds.

        Our business would be expected to generate lower revenue in a declining stock market or general economic downturn. Under our advisory fee arrangements, the fees we receive typically are based on the market value of our AUM. Accordingly, a decline in the prices of securities held in our clients' portfolios would be expected to cause our revenue and profitability to decline by:

    causing the value of our AUM to decline, which would result in lower advisory fees; or

    causing some of our clients to withdraw funds from our investment strategies in favor of investments they perceive as offering greater opportunity or lower risk, which also would result in lower advisory fees.

        As mentioned above, we experienced declines in AUM during the past five quarters, and declines in revenue and profitability during the past four quarters, and there can be no assurance that there will not be continued declines in our AUM, revenue and profitability in the future.

The volatility and disruption of the capital and credit markets, and adverse changes in the global economy have negatively impacted our AUM, revenues and profitability.

        The capital and credit markets have been experiencing volatility and disruption for more than a year. The global financial crisis that began in 2007 worsened during the third quarter of 2008 and into the fourth quarter of 2008. The decline in global market conditions has resulted, and may continue to result, in decreases in our AUM and revenues. Such declines may adversely impact our operating results, financial condition, and liquidity. We believe the disruption in the financial markets continues to cause widespread investor uncertainty. We cannot predict how long the global financial crisis will last or what its impact will be on our financial results. If U.S. and international financial markets continue to experience negative performance and volatility, demand for our products and services may decline, and our revenue, profitability, liquidity, and other financial results could suffer.

U.S. and international credit markets and economic conditions could adversely affect our liquidity and financial condition. The recent downturn in the credit markets has increased the cost of borrowing and has made financing difficult to obtain, each of which may have an adverse effect on our results of operations and business.

        Global markets and economic conditions continue to be volatile, causing disruption, which has been particularly acute in the financial sector. Continued turbulence in the U.S. and international markets and economy may adversely affect our liquidity, financial condition and profitability. The cost and availability of funds may be adversely affected by illiquid credit markets. Some lenders are imposing more stringent restrictions on the terms of credit, and there may be a general reduction in the amount of credit available in the markets in which we conduct business. The negative impact on the tightening of the credit markets may have a material adverse effect on us resulting from, but not limited to, an inability to obtain additional financing, if we require it in the future, or, if financing is available, it may be subject to significant restrictive covenants. The negative impact of the recent adverse changes in the credit markets may have an adverse effect on our results of operations and business. Federal and state governments could pass additional legislation responsive to current credit conditions, the impact of which on us is uncertain.

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Our periodic interest and amortization payment obligations under our financing facilities could adversely affect our results of operations, financial condition or liquidity. Our current financing facilities restrict our ability to make cash distributions to our Class A stockholders.

        Pursuant to a credit agreement, dated as of July 23, 2007 and as amended as of October 28, 2008, among our operating company, as the borrower, certain of its subsidiaries, as guarantors, and Bank of America, N.A., as the administrative agent, the letter of credit issuer and a lender, a $22.0 million term loan and $1.8 million letter of credit are currently outstanding. Pursuant to this credit agreement, our operating company must make quarterly amortization payments of $2.0 million on the term loan until its maturity on July 23, 2011, which may adversely affect our financial condition and liquidity. Our interest payment obligations under the credit agreement are floating rate obligations based on the London Interbank Offering Rate, or LIBOR, and the interest expense we incur will vary with changes in the applicable LIBOR reference rate. As a result, an increase in short-term interest rates will increase our interest costs, which may adversely affect our earnings and liquidity. We have entered into a swap agreement to hedge our interest rate exposure on the current outstanding balance of the term loan through July 23, 2010. However, we have not entered any arrangement to hedge our exposure to fluctuations in interest rates from July 23, 2010 to July 23, 2011. For this one year period, we may be exposed to adverse changes in interest rates that may correspondingly affect our future earnings and cash flow.

        On October 28, 2008, certain of our directors and executive officers, and entities relating to them, loaned an aggregate of $16.0 million to our operating company pursuant to the terms of $16.0 million aggregate principal amount of senior subordinated notes issued by the operating company. These notes are unsecured, have a ten-year maturity and bear interest at 6.30% per annum.

        As our obligations under the credit agreement and the senior subordinated notes become due, we may be required to either refinance any amounts then outstanding by entering into new financing facilities, which could result in higher borrowing costs, or issue equity, which would dilute existing stockholders. Our operating company could also repay them by using cash on hand or cash from the sale of our assets. No assurance can be given that we, or our operating company, will be able to enter into new financing facilities, issue equity in the future, on attractive terms, or at all, have sufficient cash on hand, or be able to raise cash through asset sales, in order to satisfy these obligations.

        Under the terms and conditions of our amended credit agreement and senior subordinated notes, our operating company is generally restricted from making cash distributions to us in respect of our approximate 9.6% member interest therein. Since this is our sole source of making distributions to our Class A stockholders, we had to suspend our regular dividend payments to stockholders. Our flexibility as to how to deploy our cash flow will be negatively impacted while we are subject to these debt agreements.

If an event of default under our credit agreement occurs, our lenders thereunder may foreclose on the collateral pledged to them under the related security agreement which could adversely affect our liquidity.

        In connection with the amendment to our credit agreement on October 28, 2008, we entered into a related security agreement with the lenders thereunder pursuant to which we granted these lenders a continuing first priority security interest in our accounts receivable, among other of our assets. Upon the occurrence of an event of default under our credit agreement, which include defaults on our payment obligations thereunder, failure to perform or observe the various affirmative covenants under the credit agreement, the occurrence of cross-defaults with other of our debt obligations, certain bankruptcy events, among other events, the lenders may, among other things, exercise their right to foreclose on these assets. Our inability to access these assets while a default is continuing, or our loss of these assets could adversely affect our liquidity.

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Our ability to retain our senior investment professionals and attract additional qualified investment professionals is critical to our success. A decline in our revenues and profitability may have an adverse effect on our business and our ability to attract and retain employees.

        Our success depends on our ability to retain the senior members of our investment team and to recruit additional qualified investment professionals. However, we may not be successful in our efforts to retain them, as the market for investment professionals is extremely competitive. Our portfolio managers possess substantial experience and expertise in investing and, in particular, our classic value investment approach, which requires significant qualitative judgments as to the future earnings power of currently underperforming businesses. Our portfolio managers also have significant relationships with our clients. Accordingly, the loss of any one of our senior investment professionals could limit our ability to successfully execute our classic value investment approach and, therefore, sustain the performance of our investment strategies, which, in turn, could have a material adverse effect on our results of operations.

Future growth of our business may be difficult to achieve, and may place significant demands on our resources and employees, and may increase our expenses.

        Future growth of our business may be difficult to achieve, and may place significant demands on our infrastructure, our investment team and other employees, and may increase our expenses. In addition, we are required to continuously develop our infrastructure in response to the increasing sophistication of the investment management market, as well as due to legal and regulatory developments.

        As a result of our investment strategies underperforming their respective benchmarks in 2006, 2007 and year-to-date 2008, our future growth may be more challenging, as this may impact our ability to attract inflows of AUM. Additionally, the current overall market environment, with equity markets broadly and significantly down, may impact potential investors' interest in committing new capital to equity strategies such as those offered by us, thereby making growth more difficult.

        The future growth of our business, if achieved, will depend, among other things, on our ability to maintain an infrastructure and staffing levels sufficient to address its growth and may require us to incur significant additional expenses and commit additional senior management and operational resources. We may face significant challenges in maintaining adequate financial and operational controls, implementing new or updated information and financial systems and procedures and training, managing and appropriately sizing our work force and other components of our business on a timely and cost-effective basis. In addition, our efforts to retain or attract qualified investment professionals may result in significant additional expenses. There can be no assurance that we will be able to manage the growth of our business effectively or that we will be able to continue to grow, and any failure to do so could adversely affect our ability to generate revenue and control our expenses.

The investment management business is intensely competitive.

        Competition in the investment management business is based on a variety of factors, including:

    investment performance;

    investor perception of an investment manager's drive, focus and alignment of interest with them;

    quality of service provided to, and duration of relationships with, clients;

    business reputation; and

    level of fees charged for services.

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        We compete in all aspects of our business with a large number of investment management firms, commercial banks, broker-dealers, insurance companies and other financial institutions. Our competitive risks are heightened by the fact that some of our competitors may invest according to different investment styles or in alternative asset classes which the markets may perceive as more attractive than our investment approach in the public equity markets. If we are unable to compete effectively, our earnings and revenues could be reduced, and our business could be materially adversely affected.

Reductions in business sourced through third-party distribution channels, or their poor reviews of us or our products, could materially reduce our revenue and ability to attract new clients.

        New accounts sourced through consultant-led searches have been a large driver of the growth of our AUM in the past and are expected to be a major component of our future growth. In addition, we have established relationships with certain mutual fund providers, most significantly John Hancock Advisers, who have offered us opportunities to access new market segments through sub-investment advisory roles. We have also accessed the high-net-worth segment of the investing community through relationships with well respected wealth advisers who utilize our investment strategies in investment programs they construct for their clients. If we fail to successfully maintain these third-party distribution and sub-investment advisory relationships, our business could be materially adversely affected. In addition, many of these parties review and evaluate our products and our organization. Poor reviews or evaluations of either the particular product or of us may result in client withdrawals or may impact our ability to attract new assets through such intermediaries.

A change of control of us could result in termination of our sub-investment advisory and investment advisory agreements.

        Pursuant to the Investment Company Act of 1940 ("Investment Company Act"), each of the sub-investment advisory agreements for the SEC-registered mutual funds that we sub-advise automatically terminates upon its deemed "assignment" and a fund's board and shareholders must approve a new agreement in order for us to continue to act as its sub-investment adviser. In addition, pursuant to the Investment Advisers Act of 1940 ("Investment Advisers Act"), each of our investment advisory agreements for the separate accounts we manage may not be "assigned" without the consent of the client. A sale of a controlling block of our voting securities and certain other transactions would be deemed an "assignment" pursuant to both the Investment Company Act and the Investment Advisers Act. Such an assignment may be deemed to occur in the event that the holders of the Class B units of our operating company exchange enough of their Class B units for shares of our Class A common stock such that they no longer own a controlling interest in us. If such a deemed assignment occurs, there can be no assurance that we will be able to obtain the necessary consents from clients whose funds are managed pursuant to separate accounts or the necessary approvals from the boards and shareholders of the SEC-registered funds that we sub-advise. An assignment, actual or constructive, would trigger these termination and consent provisions and, unless the necessary approvals and consents are obtained, could adversely affect our ability to continue managing client accounts, resulting in the loss of AUM and a corresponding loss of revenue.

Our failure to comply with guidelines set by our clients could result in damage awards against us and a loss of AUM, either of which would cause our earnings to decline or affect our ability to remain in business.

        As an investment adviser, we have a fiduciary duty to our clients. When clients retain us to manage assets on their behalf, they may specify certain guidelines regarding investment allocation and strategy that we are required to observe in the management of their portfolios. Our failure to comply with these guidelines and other limitations could result in losses to a client account that the client could seek to recover from us and could result in the client withdrawing its assets from our

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management or terminating our investment advisory agreement with them. Any of these events could cause our earnings to decline or affect our ability to remain in business.

Extensive regulation of our business limits our activities and exposes us to the potential for significant penalties, including fines or limitations on our ability to conduct our business.

        We are subject to extensive regulation of our investment management business and operations. As a registered investment adviser, the SEC oversees our activities pursuant to its regulatory authority under the Investment Advisers Act. In addition, we must comply with certain requirements under the Investment Company Act with respect to the SEC-registered funds for which we act as sub-investment adviser. We are also subject to regulation by the Department of Labor under ERISA. Each of the regulatory bodies with jurisdiction over us has regulatory powers dealing with many aspects of financial services, including the authority to grant, and in specific circumstances to cancel, permissions to carry on particular businesses. A failure to comply with the obligations imposed by the Investment Advisers Act on investment advisers, including record-keeping, advertising and operating requirements, disclosure obligations and prohibitions on fraudulent activities, could result in investigations, sanctions and reputational damage. Our failure to comply with applicable laws or regulations could result in fines, censure, suspensions of personnel or other sanctions, including revocation of our registration as an investment adviser. Even if a sanction imposed against us or our personnel is small in monetary amount, the adverse publicity arising from the imposition of sanctions against us by regulators could harm our reputation, result in withdrawal by our clients from our investment strategies and impede our ability to retain clients and develop new client relationships, which may reduce our revenues.

        We face the risk of significant intervention by regulatory authorities, including extended investigation and surveillance activity, adoption of costly or restrictive new regulations and judicial or administrative proceedings that may result in substantial penalties. Among other things, we could be fined or be prohibited from engaging in some of our business activities. The requirements imposed by our regulators are designed to ensure the integrity of the financial markets and to protect customers and other third parties who deal with us, and are not designed to protect our stockholders. Consequently, these regulations often serve to limit our activities, including through net capital, customer protection and market conduct requirements.

        In addition, the regulatory environment in which we operate is subject to modifications and further regulation. New laws or regulations, or changes in the enforcement of existing laws or regulations, applicable to us and our clients also may adversely affect our business, and our ability to function in this environment will depend on our ability to constantly monitor and react to these changes. For investment management firms in general, there have been a number of highly publicized regulatory inquiries that focus on the mutual fund industry. These inquiries already have resulted in increased scrutiny in the industry and new rules and regulations for mutual funds and their investment managers. This regulatory scrutiny may limit our ability to engage in certain activities.

        Specific regulatory changes also may have a direct impact on our revenue. In addition to regulatory scrutiny and potential fines and sanctions, regulators continue to examine different aspects of the asset management industry. New regulation regarding the annual approval process for mutual fund sub-investment advisory agreements may result in the reduction of fees or possible terminations of these agreements. These regulatory changes and other proposed or potential changes may result in a reduction of revenue associated with these activities.

Operational risks may disrupt our business, result in losses or limit our growth.

        We rely heavily on our financial, accounting, trading, compliance and other data processing systems. Any failure or interruption of these systems, whether caused by fire, other natural disaster, power or telecommunications failure, act of terrorism or war or otherwise, could result in a disruption

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of our business, liability to clients, regulatory intervention or reputational damage, and thus materially adversely affect our business. Although we have back-up systems in place, our back-up procedures and capabilities in the event of a failure or interruption may not be adequate. The inability of our systems to accommodate an increasing volume of transactions also could constrain our ability to expand our businesses. In recent years, we have substantially upgraded and expanded the capabilities of our data processing systems and other operating technology, and we expect that we will need to continue to upgrade and expand these capabilities in the future to avoid disruption of, or constraints on, our operations.

        Furthermore, we depend on our headquarters in New York City for the continued operation of our business. A disaster or a disruption in the infrastructure that supports our business, or directly affecting our headquarters, may have a material adverse impact on our ability to continue to operate our business without interruption. Although we have disaster recovery programs in place, there can be no assurance that these will be sufficient to mitigate the harm that may result from such a disaster or disruption. In addition, insurance and other safeguards might only partially reimburse us for our losses.

The investment management industry faces substantial litigation risks which could materially adversely affect our business, financial condition or results of operations or cause significant reputational harm to us.

        We depend to a large extent on our relationships with our clients and our reputation for integrity and high-caliber professional services to attract and retain clients. As a result, if a client is not satisfied with our services, such dissatisfaction may be more damaging to our business than to other types of businesses. We make investment decisions on behalf of our clients which could result in substantial losses to them. In order for our classic value investment strategies to yield attractive returns, we expect to have to hold securities for multi-year periods and, therefore, our investment strategies may not perform well in the short term. If our clients suffer significant losses, or are otherwise dissatisfied with our services, we could be subject to the risk of legal liabilities or actions alleging negligent misconduct, breach of fiduciary duty or breach of contract. These risks are often difficult to assess or quantify and their existence and magnitude often remain unknown for substantial periods of time. We may incur significant legal expenses in defending against litigation. Substantial legal liability or significant regulatory action against us could materially adversely affect our business, financial condition or results of operations or cause significant reputational harm to us. For information on our current legal proceedings, see "Part II, Item 1—Legal Proceedings."

In May 2007, our management and our independent auditors identified material weaknesses in our internal control over financial reporting that, if not properly remediated, could result in a material misstatement of our financial statements and our management's inability to report that our internal controls are effective for 2008 and thereafter, as required by the Sarbanes-Oxley Act of 2002, either of which could cause investors to lose confidence in our reported financial information or our Class A common stock to lose value.

        Our most recent annual report on Form 10-K does not include a report of management's assessment regarding internal control over financial reporting or an attestation report of the company's registered public accounting firm due to a transition period established by rules of the SEC for newly-public companies.

        The material weaknesses in our internal control over financial reporting that are discussed below were identified in connection with the audit of our 2006 consolidated financial statements, and not in connection with an audit of our internal controls over financial reporting. As discussed in our Quarterly Report on Form 10-Q for the quarter ended September 30, 2007, in May 2007, in connection with their audits of our consolidated financial statements as of and for the year ended December 31, 2006 for the purpose of including such consolidated financial statements in our Registration Statement on Form S-1 (No. 333-1436660), and related prospectus, for our initial public offering, our independent auditors informed us that they identified material weaknesses in our internal control over financial reporting for

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complex and non-routine transactions, as well as inadequate internal review. The material weaknesses related to errors in our accounting for stock-based compensation, liabilities associated with our existing membership units, and the consolidation of investment partnerships in our consolidated financial statements. The errors occurred as a result of not having sufficient access to accounting resources with technical accounting expertise to analyze complex and non-routine transactions, as well as inadequate internal review. We corrected these errors and believe that the consolidated financial statements included in this report reflect the proper treatment for the complex and non-routine transactions identified by our independent auditors.

        The existence of material weaknesses in internal control over financing reporting is an indication that there is a reasonable possibility that a material misstatement of our financial statements will not be prevented or detected in a future period. The process of designing and implementing effective internal controls requires us to continually expend significant resources in order to establish and maintain a system of internal controls that satisfies our financial reporting obligations as a public company. In addition, we cannot assure you that we will have effective internal control over our financial reporting, or that additional material weaknesses or significant deficiencies in our internal control over financial reporting will not be discovered, in the future. If we fail to maintain effective controls and procedures, we may be unable to provide required financial information in a timely and reliable manner, or otherwise comply with the standards applicable to us as a public company, and our management may not be able to report that our internal control over financial reporting is effective for the year ending December 31, 2008, as would be required by Section 404 of the Sarbanes-Oxley Act of 2002, or thereafter. If our management is not able to do so, our independent auditors would not be able to certify that our internal control over financial reporting is effective. Matters impacting our internal control over financial reporting may cause us to be unable to report our financial information on a timely basis and thereby subject us to adverse regulatory consequences, including sanctions by the SEC, or violations of the NYSE listing rules. There could also be a negative reaction in the financial markets due to a loss of investor confidence in us and the reliability of our consolidated financial statements. Confidence in the reliability of our consolidated financial statements is also likely to suffer if our independent auditors report any additional material weakness in our internal control over financial reporting. This could lead to a decline in the price of our Class A common stock.

Fulfilling our public company financial reporting and other regulatory obligations has been and will be expensive and time consuming.

        Since becoming a public company, we have been required to implement specific corporate governance practices and adhere to a variety of reporting requirements and complex accounting rules under the Sarbanes-Oxley Act of 2002 and the related rules and regulations of the SEC, as well as the rules of the NYSE. Compliance with these requirements has and will increase our legal and accounting compliance costs and place significant additional demands on our accounting and finance staff, and on our accounting, financial and information systems. We have hired, and may need to hire, additional accounting and finance staff with appropriate public company financial reporting experience and technical accounting knowledge, which has and may increase our compensation expense.

        As described above, our management will be required to conduct an annual assessment of the effectiveness of our internal controls over financial reporting and include a report on our internal controls in our annual reports on Form 10-K pursuant to Section 404 of the Sarbanes-Oxley Act of 2002. In addition, we will be required to have our independent registered public accounting firm attest to and report on the effectiveness of our internal controls over financial reporting. Under current rules, we will be subject to these requirements beginning with our annual report on Form 10-K for our fiscal year ending December 31, 2008. We will continue to incur incremental costs in order to improve our internal control over financial reporting and comply with Section 404 of the Sarbanes-Oxley Act of 2002, including increased auditing and legal fees, and costs associated with hiring additional accounting, internal audit, information technology, compliance and administrative staff.

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The historical consolidated financial information included in the current report and our previously filed public company reports may not necessarily be indicative of our future financial results.

        The historical consolidated financial information included in the current report and our previously filed public company reports may not necessarily be indicative of our future financial results. We do not expect our AUM or revenue to grow at the same rate as they grew in the five years ended December 31, 2007. Also, similar growth rates and profitability may not be achievable in the future. As mentioned above, we experienced declines in AUM during the past five quarters, and declines in revenue and profitability during the past four quarters, and there can be no assurance that there will not be continued declines in our AUM, revenue and profitability in the future. Although in 2007, we re-opened the Large Cap Value, Value Service, Small Cap Value, Mid Cap Value and All Cap Value strategies, we may close these strategies again at any time. In addition, the historical consolidated financial information included in the current report and our previously filed public company reports with respect to the periods prior to the consummation of the reorganization of our operating company and the concurrent initial public offering of our Class A common stock on October 30, 2007 do not reflect all the added costs that we expect to incur as a public company. For example, because we operated through a limited liability company prior to October 30, 2007 and paid little or no taxes on our profits, our historical consolidated financial information prior to October 30, 2007 do not reflect the tax impact of our adoption of a corporate holding company structure.

        See "Part I, Item 2—Management's Discussion and Analysis of Financial Condition and Results of Operations" and the historical financial statements included elsewhere in this report.

Risks Related to Our Investment Strategies

         Our results of operations depend on the performance of our investment strategies. Poor performance of our investment strategies will reduce or minimize the value of our assets under management, on which our advisory fees are based. Since advisory fees comprise all of our operating revenues, poor performance of our investment strategies will have a material adverse impact on our results of operations. In addition, poor performance will make it difficult for us to retain or attract clients and to grow our business. The performance of our strategies is subject to some or all of the following risks.

Our classic value investments in concentrated portfolios subject the performance of our investment strategies to the risk that the companies in which we invest may not achieve the level of earnings recovery that we initially expect, or at all.

        We generally invest in companies after they have experienced a shortfall in their historic earnings, due to an adverse business development, management error, accounting scandal or other disruption, and before there is clear evidence of earnings recovery or business momentum. While very few investors are willing to invest when companies lack earnings visibility, our classic value investment approach seeks to capture the return that can be obtained by investing in a company before the market has a level of confidence in its ability to achieve earnings recovery. However, our investment approach entails the risk that the companies included in our portfolios are not able to execute the turnaround that we had expected when we originally invested in them, thereby reducing the performance of our strategies. Our strategy of constructing concentrated portfolios, generally ranging from 30 to 60 holdings, of companies underperforming their historical earnings power, is subject to a higher risk of underperformance relative to benchmarks than the investment approaches of some of our competitors. Further, since our positions in these investments are often substantial, there is the risk that we may be unable to find willing purchasers for our investments when we decide to sell them.

        Since we apply the same investment process across all of our investment strategies, utilizing one team, and given the overlapping universes of many of our investment strategies, we could have common positions and industry or sector concentrations across many of our investment strategies at the same time. As such, factors leading one of our investment strategies to underperform may lead other

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strategies to underperform simultaneously. For example, we have been overweight the financial services sector in most of our investment strategies in recent periods, and given this sector has performed poorly during that time period, most of our strategies have been negatively impacted by this.

Our investment strategies may not obtain attractive returns in certain periods or during certain market conditions.

        Our products are best suited for investors with long-term investment horizons. In order for our classic value investment approach to yield attractive returns, we must typically hold securities for an average of over three years. Our investment strategies may not perform well during certain periods of time, as is currently the case. In addition, our strategies may not perform well during points in the economic cycle when value-oriented stocks are relatively less attractive, as has been the case for the past two years. For instance, during the late stages of an economic cycle, investors may purchase relatively expensive stocks in order to obtain access to above average growth, as was the case in the late 1990s. Value-oriented strategies may also experience weakness during periods when the markets are focused on one investment thesis or sector. In 2006, 2007 and year-to-date 2008, our investment strategies have underperformed their respective benchmarks, and there can be no assurance that such underperformance will not continue.

Our investment approach may underperform other investment approaches, which may result in significant withdrawals of client assets or client departures or a reduction in our AUM.

        Even when securities prices are rising generally, portfolio performance can be affected by our investment approach. We employ a classic value investment approach in all of our investment strategies. This investment approach has outperformed the market in some economic and market environments and underperformed it in others. We are currently in a period in which this approach has been underperforming. In particular, a prolonged period in which the growth style of investing outperforms the value style may cause our investment strategy to go out of favor with some clients, consultants or third-party intermediaries. Poor performance relative to peers, coupled with changes in personnel, extensive periods in particular market environments, or other difficulties may result in significant withdrawals of client assets, client departures or a reduction in our AUM.

        We experienced declines in AUM during the past five quarters, and declines in revenue and profitability during the past four quarters, and there can be no assurance that there will not be continued declines in our AUM, revenue and profitability in the future. During the past five quarters, our AUM declined from $30.6 billion at June 30, 2007, to $15.5 billion at September 30, 2008. This decline was due to $11.7 billion in market depreciation and $3.4 billion in net outflows. There was a corresponding decline in revenue and profitability during this period.

Further economic downturns or recessions could impair the financial position and operating results of the companies in which we invest, which could, in turn, harm our operating results.

        Many of the companies in which we have made or will make investments are, and may be, susceptible to economic downturns or recessions. President Bush signed the Emergency Economic Stabilization Act of 2008 ("EESA") into law on October 3, 2008. Pursuant to the EESA, the U.S. Treasury would have the authority to, among other things, purchase up to $700 billion of mortgage-backed and other securities from financial institutions for the purpose of stabilizing the financial markets. There can be no assurance what impact the EESA will have on the financial markets, including the extreme levels of volatility currently being experienced. The ultimate effects of EESA on the financial markets, the companies in which we invest, and the economy in general could materially and adversely affect our business, financial condition and results of operations, or the trading price of our common stock.

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Our investment process requires us to conduct extensive fundamental research on any company before investing in it, which may result in missed investment opportunities and reduce the performance of our investment strategies.

        We take a considerable amount of time to complete the in-depth research projects that our investment process requires before adding any security to our portfolio. Our process requires that we take this time in order to understand the company and the business well enough to make an informed decision as to whether we are willing to own a significant position in a company whose current earnings are below its historic norms and that does not yet have earnings visibility. However, the time we take to make this judgment may cause us to miss the opportunity to invest in a company that has a sharp and rapid earnings recovery. Any such missed investment opportunities could adversely impact the performance of our investment strategies.

Our Global Value, International Value and European Value investment strategies consist primarily of investments in the securities of issuers located outside of the United States, which may involve foreign currency exchange, political, social and economic uncertainties and risks.

        Our Global Value, International Value and European Value investment strategies, which together represented $2.9 billion of our AUM as September 30, 2008 and may comprise a larger portion of our AUM in the future, are primarily invested in securities of companies located outside the United States. Fluctuations in foreign currency exchange rates could negatively impact the portfolios of our clients who are invested in these strategies. In addition, foreign currency fluctuations may affect the levels of our AUM from one reporting period to another. An increase in the value of the U.S. dollar relative to non-U.S. currencies may result in a decrease in the dollar value of our AUM, which, in turn, would result in lower U.S.-dollar denominated revenue. We do not currently engage in any hedging activities for these portfolios and continue to market these products as unhedged.

        Investments in non-U.S. issuers may also be affected by political, social and economic uncertainty affecting a country or region in which we are invested. Many non-U.S. financial markets are not as developed, or as efficient, as the U.S. financial market, and, as a result, liquidity may be reduced and price volatility may be higher. The legal and regulatory environments, including financial accounting standards and practices, may also be different, and there may be less publicly available information in respect of such companies. These risks could adversely impact the performance of our strategies that are invested in securities of non-U.S. issuers.

Risks Related to Our Structure

Our only material asset after completion of the reorganization and our initial public offering on October 30, 2007 is our interest in our operating company, and we are accordingly dependent upon distributions from our operating company to make distributions to our Class A stockholders, and to pay taxes and other expenses.

        We are a holding company and have no material assets other than our ownership of membership units of our operating company. We have no independent means of generating revenue and cash flow. Our operating company is treated as a partnership for U.S. federal income tax purposes and, as such, is not itself subject to U.S. federal income tax. Instead, its taxable income is allocated to its members, including us, pro rata according to the number of membership units each owns. Accordingly, we incur income taxes on our proportionate share of any net taxable income of our operating company and also incur expenses related to our operations. We intend to cause our operating company to distribute cash to its members in an amount at least equal to that necessary to cover their tax liabilities, if any, with respect to the earnings of our operating company. To the extent that we need funds to pay our tax or other liabilities or to fund our operations, and our operating company is restricted from making distributions to us under applicable laws or regulations or does not have sufficient earnings to make these distributions, we may have to borrow funds to meet these obligations and run our business and, thus, our liquidity and financial condition could be materially adversely affected. There can be no

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assurance that funds will be available to borrow under such circumstances on terms acceptable to us, or at all.

We are required to pay the two current members and one former member of our operating company who sold to us an aggregate of 6.1 million membership units of our operating company in October 2007 and the holders of Class B units of our operating company who exchange their Class B units for shares of our Class A common stock most of the tax benefit of any depreciation or amortization deductions we may claim as a result of the tax basis step up we receive in connection with these sales of membership units and any future exchanges of Class B units.

        We used the net proceeds of our October 2007 initial public offering to purchase an aggregate of 6.1 million membership units of our operating company from three of its members, or the selling members. These purchases have and are expected to result in increases in our share of the tax basis in the tangible and intangible assets of our operating company that otherwise would not have been available. Any subsequent exchanges of Class B units of our operating company for shares of our Class A common stock are also expected to result in increases in our share of the tax basis in the tangible and intangible assets of our operating company that otherwise would not have been available. These increases in tax basis have and are expected to reduce the amount of tax that we would otherwise be required to pay in the future, although the Internal Revenue Service, or IRS, might challenge all or part of this tax basis increase, and a court might sustain such a challenge.

        Pursuant to a tax receivable agreement dated October 30, 2007, among the selling members, all holders of Class B units after our October 2007 initial public offering and us, we are required to pay the selling members and any holders of Class B units who elect to exchange their Class B units for shares of our Class A common stock 85% of the amount of the cash savings, if any, in U.S. federal, state and local income tax that we realize as a result of the increases in tax basis due to the sale to us of 6.1 million membership units in October 2007 and any subsequent exchanges of Class B units for shares of our Class A common stock. The actual increase in tax basis, as well as the amount and timing of any payments under this agreement, will vary depending upon a number of factors, including the timing of exchanges, the price of our Class A common stock at the time of the exchange, the extent to which such exchanges are taxable, the amount and timing of our income and the tax rates then applicable. We expect that, as a result of the size and increases in our share of the tax basis in the tangible and intangible assets of our operating company attributable to our interest therein, the payments that we may make to these members likely will be substantial. In October 2008, each of the selling members agreed with us to waive any payments that we are or may be required to make to them with respect to the 2008 and 2009 tax years, as a result of their sale to us of an aggregate of 6.1 million membership units in October 2007. There can be no assurance that any of the selling members would grant us similar waivers in the future or that any holder of Class B units would grant us such a waiver related to any future exchanges.

        Were the IRS to successfully challenge the tax basis increases described above, we would not be reimbursed for any payments made under the tax receivable agreement. As a result, in certain circumstances, we could make payments under the tax receivable agreement in excess of our cash tax savings.

If we are deemed an investment company under the Investment Company Act, our business would be subject to applicable restrictions under that Act, which could make it impracticable for us to continue our business as contemplated.

        We believe our company is not an investment company under Section 3(b)(1) of the Investment Company Act because we are primarily engaged in a non-investment company business. We conduct our operations so that we will not be deemed an investment company. However, if we were to be deemed an investment company, restrictions imposed by the Investment Company Act, including limitations on our capital structure and our ability to transact with affiliates, could make it impractical for us to continue our business as contemplated.

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Risks Related to Our Class A Common Stock

The market price and trading volume of our Class A common stock may be volatile, which could result in rapid and substantial losses for our stockholders.

        The market price of our Class A common stock may be highly volatile and could be subject to wide fluctuations. In addition, the trading volume in our Class A common stock may fluctuate and cause significant price variations to occur. If the market price of our Class A common stock declines significantly, you may be unable to resell your shares of Class A common stock at or above your purchase price, if at all. We cannot assure you that the market price of our Class A common stock will not fluctuate or decline significantly in the future. Some of the factors that could negatively affect the price of our Class A common stock, or result in fluctuations in the price or trading volume of our Class A common stock, include:

    decreases in our assets under management;

    variations in our quarterly operating results;

    failure to meet our earnings estimates;

    publication of research reports about us or the investment management industry;

    additions or departures of our managing principals and other key personnel;

    adverse market reaction to any indebtedness we may incur or securities we may issue in the future;

    actions by stockholders;

    changes in market valuations of similar companies;

    changes or proposed changes in laws or regulations, or differing interpretations thereof, affecting our business, or enforcement of these laws and regulations, or announcements relating to these matters;

    adverse publicity about the asset management industry, generally, or individual scandals, specifically; and

    general market and economic conditions.

The market price of our Class A common stock could decline due to the large number of shares of our Class A common stock eligible for future sale upon the exchange of Class B units of our operating company.

        Pursuant to the operating agreement of our operating company, on at least one date designated by us each year (or, if we do not designate a date by September 30th of any year, on October 30th), each holder of Class B units may exchange up to 15% of its Class B units for an equivalent number of shares of our Class A common stock, subject to certain restrictions set forth in the operating agreement. Pursuant to the resale and registration rights agreement, dated October 30, 2007, among the holders of Class B units and us, (i) on at least one date designated by us each year (or, if we do not designate a date by September 30th of any year, on a date that is three business days after October 30th) these holders may resell the shares of Class A common stock issued to them upon the exchange of up to 15% of their Class B units, and (ii) until October 30, 2011, they may only resell these shares in the manner determined by us. In accordance with our obligations under the operating agreement and the resale and registration rights agreement, we intend to designate (i) at least one date between now and October 30, 2009 on which we will allow holders of Class B units to exchange up to an aggregate of approximately 8.7 million Class B units, which represents 15% of the Class B units outstanding immediately after the consummation of our operating company's reorganization on October 30, 2007, for an equivalent number of shares of Class A common stock and (ii) the date or dates and manner in which we will allow these holders to resell these shares. In addition, our board of directors may, in its sole discretion, allow holders of Class B units to make exchanges in amounts

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exceeding those described above. In the near future, we will be filing a Form S-3 registration statement in order to register our issuance to these holders of the total number of shares of Class A common stock issuable upon exchange of all Class B units outstanding immediately after the consummation of our operating company's reorganization. Although we have not yet designated any exchange or resale dates, if all current holders of Class B units decided to exercise their exchange and resale rights with respect to the one-year period from October 30, 2008 to October 30, 2009, it would result in the issuance and sale of approximately 8.7 million shares our Class A common stock. The market price of our Class A common stock could decline as a result of sales of such a significant number of shares, or the perception that such sales could occur. These sales, or the possibility that these sales may occur, also might make it more difficult for us to raise additional capital by selling equity securities in the future, at a time and price that we deem appropriate. None of the members of the Executive Committee of Pzena Investment Management, LLC, who beneficially own a substantial majority of the Class B units currently outstanding, have any present plans to sell any shares of Class A common stock.

Control by our Class B stockholders, which include our managing principals, 22 of our other employees and three outside investors, of 97.9% of the combined voting power of our common stock may give rise to conflicts of interest.

        Our Class B stockholders collectively hold approximately 97.9% of the combined voting power of our common stock. Among these stockholders are each of our managing principals, 22 of our other employees and three outside investors. Holders of shares of our Class B common stock have entered into a Class B stockholders' agreement with respect to all shares of Class B common stock then held by them and any additional shares of Class B common stock they may acquire in the future. Pursuant to this agreement, they will vote these shares of Class B common stock together on all matters submitted to a vote of our common stockholders. To the extent that we cause our operating company to issue additional Class B units, which may be granted, subject to vesting, to our employees pursuant to the operating company's 2006 Equity Incentive Plan, these employees will be entitled to receive an equivalent number of shares of our Class B common stock, subject to the condition that they agree to enter into this Class B stockholders' agreement. Each share of our Class B common stock entitles its holder to five votes per share for so long as the Class B stockholders collectively hold 20% of the total number of shares of our common stock outstanding. When a Class B unit is exchanged for a share of our Class A common stock, an unvested Class B unit is forfeited due to the employee holder's failure to satisfy the conditions of the award agreement pursuant to which it was granted, or any Class B unit is forfeited as result of a breach of any restrictive covenants contained in our operating company's amended and restated operating agreement, a corresponding share of our Class B common stock will automatically be redeemed by us. For so long as our Class B stockholders hold at least 20% of the total number of shares of our common stock outstanding, they will be able to elect all of the members of our board of directors and thereby control our management and affairs, including determinations with respect to acquisitions, dispositions, borrowings, issuances of securities, and the declaration and payment of dividends. In addition, they will be able to determine the outcome of all matters requiring approval of stockholders, and will be able to cause or prevent a change of control of our company or a change in the composition of our board of directors, and could preclude any unsolicited acquisition of our company. Our Class B stockholders have the ability to prevent the consummation of mergers, takeovers or other transactions that may be in the best interests of our Class A stockholders. In particular, this concentration of voting power could deprive Class A stockholders of an opportunity to receive a premium for their shares of Class A common stock as part of a sale of our company, and could ultimately affect the market price of our Class A common stock.

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Anti-takeover provisions in our amended and restated certificate of incorporation and bylaws could discourage a change of control that our stockholders may favor, which could also adversely affect the market price of our Class A common stock.

        Provisions in our amended and restated certificate of incorporation and bylaws may make it more difficult and expensive for a third party to acquire control of us, even if a change of control would be beneficial to our stockholders. For example, our amended and restated certificate of incorporation authorizes our board of directors to issue up to 200,000,000 shares of our preferred stock and to designate the rights, preferences, privileges and restrictions of unissued series of our preferred stock, each without any vote or action by our stockholders. We could issue a series of preferred stock to impede the consummation of a merger, tender offer or other takeover attempt. The anti-takeover provisions in our amended and restated certificate of incorporation and bylaws may impede takeover attempts, or other transactions, that may be in the best interests of our stockholders and, in particular, our Class A stockholders. In addition, the market price of our Class A common stock could be adversely affected to the extent that provisions of our amended and restated certificate of incorporation and bylaws discourage potential takeover attempts, or other transactions, that our stockholders may favor.

On October 28, 2008, we suspended our regular dividend to stockholders, and our ability to pay future regular dividends is limited by the terms and conditions of our debt agreements, and additionally will be subject to the discretion of our board of directors and may be limited by our holding company structure and applicable provisions of Delaware law.

        Due to certain restrictions set forth in our credit agreement and senior subordinated notes, as described above, we have had to suspend our regular dividend payments to stockholders. In the future, our board of directors may, in its discretion, reinstate the dividend at an amount to be determined by it, subject to the restrictions in debt agreements, if then in effect. In addition, as a holding company, we depend upon the ability of our operating company to generate earnings and cash flows and distribute them to us so that we may pay our obligations and expenses and pay dividends to our stockholders. We expect to cause our operating company to make distributions to its members, including us. However, the ability of our operating company to make such distributions is subject to its operating results, debt agreements to which it is or may be a party, cash requirements and financial condition and applicable Delaware laws (which may limit the amount of funds available for distribution to its members). If, as a consequence of these various limitations and restrictions, we are unable to generate sufficient distributions from our business, we may not be able to make, or may have to reduce or eliminate, the payment of future dividends on our Class A common stock.

The disparity in the voting rights among the classes of our common stock may have a potential adverse effect on the price of our Class A common stock.

        Shares of our Class A and Class B common stock entitle the respective holders to identical rights, except that each share of our Class A common stock entitles its holder to one vote on all matters to be voted on by stockholders generally, while each share of our Class B common stock entitles its holder to five votes for so long as the number of shares of Class B common stock represents 20% of the total number of shares of our common stock outstanding. The difference in voting rights could adversely affect the value of our Class A common stock to the extent that investors view, or any potential future purchaser of our company views, the superior voting rights of the Class B common stock to have value.

Item 2.    Unregistered Sales of Equity Securities and Use of Proceeds.

        None.

Item 3.    Defaults Upon Senior Securities.

        None.

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Item 4.    Submission of Matters to a Vote of Security Holders.

        Not applicable.

Item 5.    Other Information.

        None.

Item 6.    Exhibits.

Exhibit
  Description of Exhibit
  4.1   Pzena Investment Management LLC Senior Subordinated Note for $1,250,000, dated October 28, 2008, issued to The Michele Pzena Family Trust created under the Richard Pzena Descendants Trust dated November 4, 2005, Laura Pzena, Trustee

  4.2

 

Pzena Investment Management LLC Senior Subordinated Note for $1,250,000, dated October 28, 2008, issued to The Daniel Pzena Family Trust created under the Richard Pzena Descendants Trust dated November 4, 2005, Jeffrey Pzena and William Pearce, Trustees

  4.3

 

Pzena Investment Management LLC Senior Subordinated Note for $1,250,000, dated October 28, 2008, issued to The Aaron Pzena Family Trust created under the Richard Pzena Descendants Trust dated November 4, 2005, Edward Fisher, Trustee

  4.4

 

Pzena Investment Management LLC Senior Subordinated Note for $1,250,000, dated October 28, 2008, issued to The Eric Pzena Family Trust created under the Richard Pzena Descendants Trust dated November 4, 2005, Robin Buchalter, Trustee

  4.5

 

Pzena Investment Management LLC Senior Subordinated Note for $5,000,000, dated October 28, 2008, issued to The Pzena Family 1996 Irrevocable Trust between Richard S. Pzena and Wendy M. Pzena dated December 30, 1996, Gregory Sawers, Trustee

  4.6

 

Pzena Investment Management LLC Senior Subordinated Note for $5,000,000, dated October 28, 2008, issued to Milestone Associates, L.L.C.

  4.7

 

Pzena Investment Management LLC Senior Subordinated Note for $1,000,000, dated October 28, 2008, issued to Amelia Jones Feinberg

10.1

 

Amendment No. 2 to Credit Agreement and Limited Consent and Waiver, dated as of September 22, 2008, among Pzena Investment Management, LLC as Borrower, Pzena Alternative Investments LLC as Guarantor, and Bank of America, N.A. as Administrative Agent and Lender(1)

10.2

 

Amendment No. 3 to Credit Agreement and Limited Consent and Waiver, dated October 28, 2008, among Pzena Investment Management, LLC, as the Borrower, Pzena Alternative Investments, LLC, as Guarantor, and Bank of America, N.A., as Administrative Agent and Lender

10.3

 

Security Agreement, dated as of October 28, 2008, among Pzena Investment Management, LLC, Pzena Alternative Investments, LLC, and Bank of America, N.A., as Administrative Agent for each of the Secured Parties named therein

10.4

 

Pzena Investment Management, LLC Amended and Restated Bonus Plan

31.1

 

Certification of Chief Executive Officer pursuant to Exchange Act Rule 13a-14(a)/15(d)-14(a)

31.2

 

Certification of Chief Financial Officer pursuant to Exchange Act Rule 13a-14(a)/15(d)-14(a)

32.1

 

Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

32.2

 

Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

(1)
Previously filed as an exhibit to the Company's current report on Form 8-K filed with the Securities and Exchange Commission on September 22, 2008.

65



SIGNATURES

        Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

Dated: November 13, 2008

    PZENA INVESTMENT MANAGEMENT, INC.

 

 

By:

 

/s/ RICHARD S. PZENA

Name:  Richard S. Pzena
Title:     
Chief Executive Officer

 

 

By:

 

/s/ WAYNE A. PALLADINO

Name:  Wayne A. Palladino
Title:     
Chief Financial Officer

66




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PZENA INVESTMENT MANAGEMENT, INC. FORM 10-Q TABLE OF CONTENTS
EXPLANATORY NOTE
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
PZENA INVESTMENT MANAGEMENT, INC. CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION (in thousands, except share and per-share amounts)
PZENA INVESTMENT MANAGEMENT, INC. (Prior to October 30, 2007—Pzena Investment Management, LLC) UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS (in thousands, except share and per-share amounts)
PZENA INVESTMENT MANAGEMENT, INC. (Prior to October 30, 2007—Pzena Investment Management, LLC) UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands)
PZENA INVESTMENT MANAGEMENT, INC. (Prior to October 30, 2007—Pzena Investment Management, LLC) Unaudited Notes to the Consolidated Financial Statements
SIGNATURES

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Exhibit 4.1

THIS NOTE IS FOR INVESTMENT PURPOSES AND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT AND SUCH LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.


PZENA INVESTMENT MANAGEMENT, LLC
SENIOR SUBORDINATED NOTE

$1,250,000   New York, NY
    October 28, 2008

        PZENA INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the " Company "), the principal office of which is located at 120 E. 45 th  Street, 20 th  Floor, New York, NY 10036, for value received hereby promises to pay to The Michele Pzena Family Trust created under the Richard Pzena Descendants Trust dated November 4, 2005, Laura Pzena, Trustee (the " Lender "), the sum of one million, two hundred and fifty thousand dollars ($1,250,000), or such lesser amount as shall then equal the outstanding principal amount hereof and any unpaid accrued interest hereon, as set forth below, on the earlier to occur of (i) ten (10) years from the date hereof (the " Maturity Date "), or (ii) when declared due and payable by the Lender upon the occurrence of an Event of Default (as defined hereinafter).

        The following is a statement of the rights of the Lender under this Subordinated Note (the " Note ") and the conditions to which this Note is subject, and to which the Lender, by the acceptance of this Note, agrees:

1.     INTEREST.

        The Company promises to pay interest in lawful money of the United States of America on the sum of the daily outstanding principal amount hereof from the date hereof until payment in full, which interest shall be payable at 6.3% per annum (the " Interest Rate "). Interest on the Note shall be payable in cash at the Interest Rate to the Lender, quarterly in arrears, on March 31, June 30, September 30 and December 31 in each year commencing December 31, 2008 (unless such day is not a business day, in which event on the next succeeding business day) (each such date an " Interest Payment Date "); provided , however , that interest shall not be permitted to be paid in cash to the extent that an event of default pursuant to Section 8.01(a) of the Credit Agreement (as defined below) has occurred and is continuing. To the extent interest which is due and payable has not been paid in cash on an Interest Payment Date, such interest shall be added to the principal amount hereunder and shall accrue interest at the Interest Rate. Interest shall be calculated on the basis of a 365-day year for the actual number of days elapsed. The Company shall be entitled to deduct and withhold from any payment pursuant to this Note such amounts as are required to be withheld with respect to the Lender by applicable law. The Lender shall provide any documentation or certification required to establish that the Lender is entitled to an exemption from or reduction in the amount of withholding taxes.

2.     RESTRICTED PAYMENTS.

        The Company shall not declare or make, directly or indirectly, any Restricted Payment (as defined below), or incur any obligation (contingent or otherwise) to do so, except that:


        " Restricted Payment " means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other equity interest of the Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other equity interest, or on account of any return of capital to the Company's stockholders, partners or members (or the equivalent Person thereof).

3.     EVENTS OF DEFAULT.

        If any of the events specified in this Section 3 shall occur (herein individually referred to as an " Event of Default "), the Lender may, so long as such condition exists, declare the entire principal and unpaid accrued interest hereon immediately due and payable, by notice in writing to the Company:

        " Change of Control " shall mean (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the current officers (including Richard S. Pzena) and other employees of the Company (together with any trust or other estate planning vehicle of which the beneficiaries are the immediate family members of such officers or employees)

2


becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the aggregate voting rights of all classes of equity securities of PIM entitled to vote for members of the board of directors of PIM on a fully-diluted basis, (ii) PIM ceases to be the managing member of the Company or (iii) PIM or the Company sells or transfers all or substantially all of its assets.

4.     SUBORDINATION.

        The indebtedness evidenced by this Note is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all the Company's existing and future indebtedness under the Credit Agreement dated as of July 23, 2007 (the " Credit Agreement "), among the Company, each lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent (the " Senior Agent" ) and L/C Issuer, as such agreement is amended, waived or otherwise modified from time to time (such indebtedness, the " Senior Indebtedness ").

        4.1     Subordination of Liabilities .    Lender by its acceptance of this Note covenants and agrees, that the payment of the principal of this Note (the " Subordinated Indebtedness ") is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, to the prior payment in full in cash of all Senior Indebtedness. The provisions of this Section 4 shall constitute a continuing offer to all persons who, in reliance upon such provisions, become lenders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the lenders of Senior Indebtedness, and such lenders are hereby made obligees hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions.

3


        4.2     Subordination Rights Not Impaired by Acts or Omissions of Company or Lenders of Senior Indebtedness .    No right of any present or future lenders of the Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company, or by any noncompliance by the Company with the terms and provisions of this Note, regardless of any knowledge thereof which any such Lender may have or be otherwise charged with. The lenders of the Senior Indebtedness may, without in any way affecting the obligations of the Lender with respect hereto, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment of, change or extend the time of payment of, or renew or alter, the Senior Indebtedness or amend, modify or supplement any agreement or instrument governing or evidencing such Senior Indebtedness or any other document referred to therein, or exercise or refrain from exercising any other of their rights under the Senior Indebtedness including, without limitation, the waiver of default thereunder and the release of any collateral securing such Senior Indebtedness, all without notice to or assent from the Lender.

5.     SENIORITY

        The indebtedness evidenced by this Note shall rank senior to any other indebtedness owed by the Company other than the Senior Indebtedness and any obligations pertaining to letters of credit which are issued in replacement of letters of credit issued on the date hereof (the " Letters of Credit "), whether now existing or hereafter arising. The Company shall not enter into or assume any indebtedness, other than the Senior Indebtedness or the Letters of Credit, unless each lender or beneficiary of such indebtedness agrees in writing to subordinate all payments it may receive in

4



connection with such indebtedness and subject all such payments in right and time of payment to the Lender and the other holders of the Senior Subordinated Notes.

6.     REPAYMENT

        The Company may repay this Note, in whole or in part, at any time without the Lender's consent and without penalty or premium. All money paid toward the satisfaction of this Note shall be applied first to the payment of accrued and unpaid interest and then to the retirement of the principal. A prepayment of less than all of the unpaid principal amount of this Note shall not relieve the Company of its obligation to make the scheduled payment of the balance of the principal amount and any accrued and unpaid interest on this Note on the Maturity Date.

7.     PAYMENT PRO RATA TO ALL LENDERS.

        On the date hereof, certain other lenders are making loans to the Company pursuant to subordinated notes with terms which are substantially similar to those contained herein (the " Subordinated Notes "); together with the loans made hereunder, the principal amount under the Subordinated Notes on the date hereof is $16,000,000. The Company shall not make any payment with respect to any of the other Subordinated Notes (whether for principal, interest, expenses or otherwise), regardless of whether an Event of Default has occurred or is continuing or any insolvency proceeding has been instituted with respect to the Company, unless in each case all lenders under such Subordinated Notes are paid ratably in accordance with their respective interests in the aggregate Subordinated Notes outstanding (or ratably in accordance with amounts owed in the case of expenses).

8.     TRANSFER.

        The Lender may not assign, hypothecate, grant a security interest in or transfer all or a portion of its rights and interests in this Note. The Company may not assign or transfer all or any portion of this Note.

9.     BINDING EFFECT.

        This Note constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms subject to and as limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the rights and remedies of creditors and by equitable principles relating to enforcement to the extent applicable. The rights and obligations of the Company and the Lender shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

10.   WAIVER AND AMENDMENT.

        Any provision of this Note may be amended, supplemented, waived or modified upon the written consent of the Company and the Lender; provided , however , that the provisions of Section 2 and Section 5 may be amended, supplemented, waived or modified upon the written consent of the Company and the holders of more than 75% in principal amount of the Subordinated Notes. To the extent the Company agrees to amend, supplement, waive or modify any other Subordinated Note in a manner that is favorable to the lender under such Subordinated Note the Company shall offer to amend, supplement, waive or modify this Note in the same manner.

11.   REINSTATEMENT

        To the maximum extent permitted by law, this Note and the payment and other obligations of the Company hereunder (collectively, the " Obligations ") shall continue to be effective or be reinstated, as the case may be, if at any time any amount received by the Lender in respect of the Obligations is

5



rescinded or must otherwise be restored or returned by the Lender upon the insolvency, administration, bankruptcy, dissolution, liquidation or reorganization of the Company or any other person or entity or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for the Company or any other person or entity or any substantial part of its assets, or otherwise, all as though such payments had not been made.

12.   EXPENSES; INDEMNITY

13.   GOVERNING LAW.

        This Note is governed by, and shall be construed and enforced in accordance with, the laws of the State of New York.

[Remainder of Page Intentionally Left Blank.]

6


        IN WITNESS WHEREOF, the Company has caused this Note to be issued on the date first above written.

    PZENA INVESTMENT MANAGEMENT, LLC.

 

 

By:

 

/s/ WAYNE A. PALLADINO

Name: Wayne A. Palladino
Title: Chief Financial Officer

7




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Exhibit 4.2

THIS NOTE IS FOR INVESTMENT PURPOSES AND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT AND SUCH LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.


PZENA INVESTMENT MANAGEMENT, LLC
SENIOR SUBORDINATED NOTE

$1,250,000   New York, NY
October 28, 2008

        PZENA INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the " Company "), the principal office of which is located at 120 E. 45 th  Street, 20 th  Floor, New York, NY 10036, for value received hereby promises to pay to The Daniel Pzena Family Trust created under the Richard Pzena Descendants Trust dated November 4, 2005, Jeffrey Pzena and William Pearce, Trustees (the " Lender "), the sum of one million, two hundred and fifty thousand dollars ($1,250,000), or such lesser amount as shall then equal the outstanding principal amount hereof and any unpaid accrued interest hereon, as set forth below, on the earlier to occur of (i) ten (10) years from the date hereof (the " Maturity Date "), or (ii) when declared due and payable by the Lender upon the occurrence of an Event of Default (as defined hereinafter).

        The following is a statement of the rights of the Lender under this Subordinated Note (the " Note ") and the conditions to which this Note is subject, and to which the Lender, by the acceptance of this Note, agrees:

1.     INTEREST.

        The Company promises to pay interest in lawful money of the United States of America on the sum of the daily outstanding principal amount hereof from the date hereof until payment in full, which interest shall be payable at 6.3% per annum (the " Interest Rate "). Interest on the Note shall be payable in cash at the Interest Rate to the Lender, quarterly in arrears, on March 31, June 30, September 30 and December 31 in each year commencing December 31, 2008 (unless such day is not a business day, in which event on the next succeeding business day) (each such date an " Interest Payment Date "); provided , however , that interest shall not be permitted to be paid in cash to the extent that an event of default pursuant to Section 8.01(a) of the Credit Agreement (as defined below) has occurred and is continuing. To the extent interest which is due and payable has not been paid in cash on an Interest Payment Date, such interest shall be added to the principal amount hereunder and shall accrue interest at the Interest Rate. Interest shall be calculated on the basis of a 365-day year for the actual number of days elapsed. The Company shall be entitled to deduct and withhold from any payment pursuant to this Note such amounts as are required to be withheld with respect to the Lender by applicable law. The Lender shall provide any documentation or certification required to establish that the Lender is entitled to an exemption from or reduction in the amount of withholding taxes.

2.     RESTRICTED PAYMENTS.

        The Company shall not declare or make, directly or indirectly, any Restricted Payment (as defined below), or incur any obligation (contingent or otherwise) to do so, except that:


        " Restricted Payment " means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other equity interest of the Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other equity interest, or on account of any return of capital to the Company's stockholders, partners or members (or the equivalent Person thereof).

3.     EVENTS OF DEFAULT.

        If any of the events specified in this Section 3 shall occur (herein individually referred to as an " Event of Default "), the Lender may, so long as such condition exists, declare the entire principal and unpaid accrued interest hereon immediately due and payable, by notice in writing to the Company:

        " Change of Control " shall mean (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the current officers (including Richard S. Pzena) and other employees of the Company (together with any trust or other estate planning vehicle of which the beneficiaries are the immediate family members of such officers or employees)

2


becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the aggregate voting rights of all classes of equity securities of PIM entitled to vote for members of the board of directors of PIM on a fully-diluted basis, (ii) PIM ceases to be the managing member of the Company or (iii) PIM or the Company sells or transfers all or substantially all of its assets.

4.     SUBORDINATION.

        The indebtedness evidenced by this Note is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all the Company's existing and future indebtedness under the Credit Agreement dated as of July 23, 2007 (the " Credit Agreement "), among the Company, each lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent (the " Senior Agent" ) and L/C Issuer, as such agreement is amended, waived or otherwise modified from time to time (such indebtedness, the " Senior Indebtedness ").

        4.1     Subordination of Liabilities .    Lender by its acceptance of this Note covenants and agrees, that the payment of the principal of this Note (the " Subordinated Indebtedness ") is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, to the prior payment in full in cash of all Senior Indebtedness. The provisions of this Section 4 shall constitute a continuing offer to all persons who, in reliance upon such provisions, become lenders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the lenders of Senior Indebtedness, and such lenders are hereby made obligees hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions.

3


        4.2     Subordination Rights Not Impaired by Acts or Omissions of Company or Lenders of Senior Indebtedness .    No right of any present or future lenders of the Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company, or by any noncompliance by the Company with the terms and provisions of this Note, regardless of any knowledge thereof which any such Lender may have or be otherwise charged with. The lenders of the Senior Indebtedness may, without in any way affecting the obligations of the Lender with respect hereto, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment of, change or extend the time of payment of, or renew or alter, the Senior Indebtedness or amend, modify or supplement any agreement or instrument governing or evidencing such Senior Indebtedness or any other document referred to therein, or exercise or refrain from exercising any other of their rights under the Senior Indebtedness including, without limitation, the waiver of default thereunder and the release of any collateral securing such Senior Indebtedness, all without notice to or assent from the Lender.

5.     SENIORITY

        The indebtedness evidenced by this Note shall rank senior to any other indebtedness owed by the Company other than the Senior Indebtedness and any obligations pertaining to letters of credit which are issued in replacement of letters of credit issued on the date hereof (the " Letters of Credit "), whether now existing or hereafter arising. The Company shall not enter into or assume any indebtedness, other than the Senior Indebtedness or the Letters of Credit, unless each lender or beneficiary of such indebtedness agrees in writing to subordinate all payments it may receive in

4



connection with such indebtedness and subject all such payments in right and time of payment to the Lender and the other holders of the Senior Subordinated Notes.

6.     REPAYMENT

        The Company may repay this Note, in whole or in part, at any time without the Lender's consent and without penalty or premium. All money paid toward the satisfaction of this Note shall be applied first to the payment of accrued and unpaid interest and then to the retirement of the principal. A prepayment of less than all of the unpaid principal amount of this Note shall not relieve the Company of its obligation to make the scheduled payment of the balance of the principal amount and any accrued and unpaid interest on this Note on the Maturity Date.

7.     PAYMENT PRO RATA TO ALL LENDERS.

        On the date hereof, certain other lenders are making loans to the Company pursuant to subordinated notes with terms which are substantially similar to those contained herein (the " Subordinated Notes "); together with the loans made hereunder, the principal amount under the Subordinated Notes on the date hereof is $16,000,000. The Company shall not make any payment with respect to any of the other Subordinated Notes (whether for principal, interest, expenses or otherwise), regardless of whether an Event of Default has occurred or is continuing or any insolvency proceeding has been instituted with respect to the Company, unless in each case all lenders under such Subordinated Notes are paid ratably in accordance with their respective interests in the aggregate Subordinated Notes outstanding (or ratably in accordance with amounts owed in the case of expenses).

8.     TRANSFER.

        The Lender may not assign, hypothecate, grant a security interest in or transfer all or a portion of its rights and interests in this Note. The Company may not assign or transfer all or any portion of this Note.

9.     BINDING EFFECT.

        This Note constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms subject to and as limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the rights and remedies of creditors and by equitable principles relating to enforcement to the extent applicable. The rights and obligations of the Company and the Lender shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

10.   WAIVER AND AMENDMENT.

        Any provision of this Note may be amended, supplemented, waived or modified upon the written consent of the Company and the Lender; provided , however , that the provisions of Section 2 and Section 5 may be amended, supplemented, waived or modified upon the written consent of the Company and the holders of more than 75% in principal amount of the Subordinated Notes. To the extent the Company agrees to amend, supplement, waive or modify any other Subordinated Note in a manner that is favorable to the lender under such Subordinated Note the Company shall offer to amend, supplement, waive or modify this Note in the same manner.

11.   REINSTATEMENT

        To the maximum extent permitted by law, this Note and the payment and other obligations of the Company hereunder (collectively, the " Obligations ") shall continue to be effective or be reinstated, as the case may be, if at any time any amount received by the Lender in respect of the Obligations is

5



rescinded or must otherwise be restored or returned by the Lender upon the insolvency, administration, bankruptcy, dissolution, liquidation or reorganization of the Company or any other person or entity or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for the Company or any other person or entity or any substantial part of its assets, or otherwise, all as though such payments had not been made.

12.   EXPENSES; INDEMNITY

13.   GOVERNING LAW.

        This Note is governed by, and shall be construed and enforced in accordance with, the laws of the State of New York.

[Remainder of Page Intentionally Left Blank.]

6


        IN WITNESS WHEREOF, the Company has caused this Note to be issued on the date first above written.

    PZENA INVESTMENT MANAGEMENT, LLC.

 

 

By:

 

/s/ WAYNE A. PALLADINO

Name: Wayne A. Palladino
Title: Chief Financial Officer

7




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Exhibit 4.3

THIS NOTE IS FOR INVESTMENT PURPOSES AND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT AND SUCH LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.


PZENA INVESTMENT MANAGEMENT, LLC
SENIOR SUBORDINATED NOTE

$1,250,000   New York, NY
October 28, 2008

        PZENA INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the " Company "), the principal office of which is located at 120 E. 45 th  Street, 20 th  Floor, New York, NY 10036, for value received hereby promises to pay to The Aaron Pzena Family Trust created under the Richard Pzena Descendants Trust dated November 4, 2005, Edward Fisher, Trustee (the " Lender "), the sum of one million, two hundred and fifty thousand dollars ($1,250,000), or such lesser amount as shall then equal the outstanding principal amount hereof and any unpaid accrued interest hereon, as set forth below, on the earlier to occur of (i) ten (10) years from the date hereof (the " Maturity Date "), or (ii) when declared due and payable by the Lender upon the occurrence of an Event of Default (as defined hereinafter).

        The following is a statement of the rights of the Lender under this Subordinated Note (the " Note ") and the conditions to which this Note is subject, and to which the Lender, by the acceptance of this Note, agrees:

1.     INTEREST.

        The Company promises to pay interest in lawful money of the United States of America on the sum of the daily outstanding principal amount hereof from the date hereof until payment in full, which interest shall be payable at 6.3% per annum (the " Interest Rate "). Interest on the Note shall be payable in cash at the Interest Rate to the Lender, quarterly in arrears, on March 31, June 30, September 30 and December 31 in each year commencing December 31, 2008 (unless such day is not a business day, in which event on the next succeeding business day) (each such date an " Interest Payment Date "); provided , however , that interest shall not be permitted to be paid in cash to the extent that an event of default pursuant to Section 8.01(a) of the Credit Agreement (as defined below) has occurred and is continuing. To the extent interest which is due and payable has not been paid in cash on an Interest Payment Date, such interest shall be added to the principal amount hereunder and shall accrue interest at the Interest Rate. Interest shall be calculated on the basis of a 365-day year for the actual number of days elapsed. The Company shall be entitled to deduct and withhold from any payment pursuant to this Note such amounts as are required to be withheld with respect to the Lender by applicable law. The Lender shall provide any documentation or certification required to establish that the Lender is entitled to an exemption from or reduction in the amount of withholding taxes.

2.     RESTRICTED PAYMENTS.

        The Company shall not declare or make, directly or indirectly, any Restricted Payment (as defined below), or incur any obligation (contingent or otherwise) to do so, except that:


        " Restricted Payment " means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other equity interest of the Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other equity interest, or on account of any return of capital to the Company's stockholders, partners or members (or the equivalent Person thereof).

3.     EVENTS OF DEFAULT.

        If any of the events specified in this Section 3 shall occur (herein individually referred to as an " Event of Default "), the Lender may, so long as such condition exists, declare the entire principal and unpaid accrued interest hereon immediately due and payable, by notice in writing to the Company:

        " Change of Control " shall mean (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the current officers (including Richard S. Pzena) and other employees of the Company (together with any trust or other estate planning vehicle of which the beneficiaries are the immediate family members of such officers or employees)

2


becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the aggregate voting rights of all classes of equity securities of PIM entitled to vote for members of the board of directors of PIM on a fully-diluted basis, (ii) PIM ceases to be the managing member of the Company or (iii) PIM or the Company sells or transfers all or substantially all of its assets.

4.     SUBORDINATION.

        The indebtedness evidenced by this Note is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all the Company's existing and future indebtedness under the Credit Agreement dated as of July 23, 2007 (the " Credit Agreement "), among the Company, each lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent (the " Senior Agent ") and L/C Issuer, as such agreement is amended, waived or otherwise modified from time to time (such indebtedness, the " Senior Indebtedness ").

        4.1     Subordination of Liabilities .    Lender by its acceptance of this Note covenants and agrees, that the payment of the principal of this Note (the " Subordinated Indebtedness ") is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, to the prior payment in full in cash of all Senior Indebtedness. The provisions of this Section 4 shall constitute a continuing offer to all persons who, in reliance upon such provisions, become lenders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the lenders of Senior Indebtedness, and such lenders are hereby made obligees hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions.

3


        4.2     Subordination Rights Not Impaired by Acts or Omissions of Company or Lenders of Senior Indebtedness .    No right of any present or future lenders of the Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company, or by any noncompliance by the Company with the terms and provisions of this Note, regardless of any knowledge thereof which any such Lender may have or be otherwise charged with. The lenders of the Senior Indebtedness may, without in any way affecting the obligations of the Lender with respect hereto, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment of, change or extend the time of payment of, or renew or alter, the Senior Indebtedness or amend, modify or supplement any agreement or instrument governing or evidencing such Senior Indebtedness or any other document referred to therein, or exercise or refrain from exercising any other of their rights under the Senior Indebtedness including, without limitation, the waiver of default thereunder and the release of any collateral securing such Senior Indebtedness, all without notice to or assent from the Lender.

5.     SENIORITY

        The indebtedness evidenced by this Note shall rank senior to any other indebtedness owed by the Company other than the Senior Indebtedness and any obligations pertaining to letters of credit which are issued in replacement of letters of credit issued on the date hereof (the " Letters of Credit "), whether now existing or hereafter arising. The Company shall not enter into or assume any indebtedness, other than the Senior Indebtedness or the Letters of Credit, unless each lender or beneficiary of such indebtedness agrees in writing to subordinate all payments it may receive in

4



connection with such indebtedness and subject all such payments in right and time of payment to the Lender and the other holders of the Senior Subordinated Notes.

6.     REPAYMENT

        The Company may repay this Note, in whole or in part, at any time without the Lender's consent and without penalty or premium. All money paid toward the satisfaction of this Note shall be applied first to the payment of accrued and unpaid interest and then to the retirement of the principal. A prepayment of less than all of the unpaid principal amount of this Note shall not relieve the Company of its obligation to make the scheduled payment of the balance of the principal amount and any accrued and unpaid interest on this Note on the Maturity Date.

7.     PAYMENT PRO RATA TO ALL LENDERS.

        On the date hereof, certain other lenders are making loans to the Company pursuant to subordinated notes with terms which are substantially similar to those contained herein (the " Subordinated Notes "); together with the loans made hereunder, the principal amount under the Subordinated Notes on the date hereof is $16,000,000. The Company shall not make any payment with respect to any of the other Subordinated Notes (whether for principal, interest, expenses or otherwise), regardless of whether an Event of Default has occurred or is continuing or any insolvency proceeding has been instituted with respect to the Company, unless in each case all lenders under such Subordinated Notes are paid ratably in accordance with their respective interests in the aggregate Subordinated Notes outstanding (or ratably in accordance with amounts owed in the case of expenses).

8.     TRANSFER.

        The Lender may not assign, hypothecate, grant a security interest in or transfer all or a portion of its rights and interests in this Note. The Company may not assign or transfer all or any portion of this Note.

9.     BINDING EFFECT.

        This Note constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms subject to and as limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the rights and remedies of creditors and by equitable principles relating to enforcement to the extent applicable. The rights and obligations of the Company and the Lender shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

10.   WAIVER AND AMENDMENT.

        Any provision of this Note may be amended, supplemented, waived or modified upon the written consent of the Company and the Lender; provided , however , that the provisions of Section 2 and Section 5 may be amended, supplemented, waived or modified upon the written consent of the Company and the holders of more than 75% in principal amount of the Subordinated Notes. To the extent the Company agrees to amend, supplement, waive or modify any other Subordinated Note in a manner that is favorable to the lender under such Subordinated Note the Company shall offer to amend, supplement, waive or modify this Note in the same manner.

11.   REINSTATEMENT

        To the maximum extent permitted by law, this Note and the payment and other obligations of the Company hereunder (collectively, the " Obligations ") shall continue to be effective or be reinstated, as the case may be, if at any time any amount received by the Lender in respect of the Obligations is

5



rescinded or must otherwise be restored or returned by the Lender upon the insolvency, administration, bankruptcy, dissolution, liquidation or reorganization of the Company or any other person or entity or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for the Company or any other person or entity or any substantial part of its assets, or otherwise, all as though such payments had not been made.

12.   EXPENSES; INDEMNITY

13.   GOVERNING LAW.

        This Note is governed by, and shall be construed and enforced in accordance with, the laws of the State of New York.

[Remainder of Page Intentionally Left Blank.]

6


        IN WITNESS WHEREOF, the Company has caused this Note to be issued on the date first above written.

    PZENA INVESTMENT MANAGEMENT, LLC.

 

 

By:

 

/s/ WAYNE A. PALLADINO

Name: Wayne A. Palladino
Title: Chief Financial Officer

7




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Exhibit 4.4

THIS NOTE IS FOR INVESTMENT PURPOSES AND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT AND SUCH LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.


PZENA INVESTMENT MANAGEMENT, LLC
SENIOR SUBORDINATED NOTE

$1,250,000   New York, NY
October 28, 2008

        PZENA INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the " Company "), the principal office of which is located at 120 E. 45 th  Street, 20 th  Floor, New York, NY 10036, for value received hereby promises to pay to The Eric Pzena Family Trust created under the Richard Pzena Descendants Trust dated November 4, 2005, Robin Buchalter, Trustee (the " Lender "), the sum of one million, two hundred and fifty thousand dollars ($1,250,000), or such lesser amount as shall then equal the outstanding principal amount hereof and any unpaid accrued interest hereon, as set forth below, on the earlier to occur of (i) ten (10) years from the date hereof (the " Maturity Date "), or (ii) when declared due and payable by the Lender upon the occurrence of an Event of Default (as defined hereinafter).

        The following is a statement of the rights of the Lender under this Subordinated Note (the " Note ") and the conditions to which this Note is subject, and to which the Lender, by the acceptance of this Note, agrees:

1.     INTEREST.

        The Company promises to pay interest in lawful money of the United States of America on the sum of the daily outstanding principal amount hereof from the date hereof until payment in full, which interest shall be payable at 6.3% per annum (the " Interest Rate "). Interest on the Note shall be payable in cash at the Interest Rate to the Lender, quarterly in arrears, on March 31, June 30, September 30 and December 31 in each year commencing December 31, 2008 (unless such day is not a business day, in which event on the next succeeding business day) (each such date an " Interest Payment Date "); provided , however , that interest shall not be permitted to be paid in cash to the extent that an event of default pursuant to Section 8.01(a) of the Credit Agreement (as defined below) has occurred and is continuing. To the extent interest which is due and payable has not been paid in cash on an Interest Payment Date, such interest shall be added to the principal amount hereunder and shall accrue interest at the Interest Rate. Interest shall be calculated on the basis of a 365-day year for the actual number of days elapsed. The Company shall be entitled to deduct and withhold from any payment pursuant to this Note such amounts as are required to be withheld with respect to the Lender by applicable law. The Lender shall provide any documentation or certification required to establish that the Lender is entitled to an exemption from or reduction in the amount of withholding taxes.

2.     RESTRICTED PAYMENTS.

        The Company shall not declare or make, directly or indirectly, any Restricted Payment (as defined below), or incur any obligation (contingent or otherwise) to do so, except that:


        " Restricted Payment " means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other equity interest of the Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other equity interest, or on account of any return of capital to the Company's stockholders, partners or members (or the equivalent Person thereof).

3.     EVENTS OF DEFAULT.

        If any of the events specified in this Section 3 shall occur (herein individually referred to as an " Event of Default "), the Lender may, so long as such condition exists, declare the entire principal and unpaid accrued interest hereon immediately due and payable, by notice in writing to the Company:

        " Change of Control " shall mean (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the current officers (including Richard S. Pzena) and other employees of the Company (together with any trust or other estate planning vehicle of which the beneficiaries are the immediate family members of such officers or employees)

2


becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the aggregate voting rights of all classes of equity securities of PIM entitled to vote for members of the board of directors of PIM on a fully-diluted basis, (ii) PIM ceases to be the managing member of the Company or (iii) PIM or the Company sells or transfers all or substantially all of its assets.

4.     SUBORDINATION.

        The indebtedness evidenced by this Note is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all the Company's existing and future indebtedness under the Credit Agreement dated as of July 23, 2007 (the " Credit Agreement "), among the Company, each lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent (the " Senior Agent ") and L/C Issuer, as such agreement is amended, waived or otherwise modified from time to time (such indebtedness, the " Senior Indebtedness ").

        4.1     Subordination of Liabilities .    Lender by its acceptance of this Note covenants and agrees, that the payment of the principal of this Note (the " Subordinated Indebtedness ") is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, to the prior payment in full in cash of all Senior Indebtedness. The provisions of this Section 4 shall constitute a continuing offer to all persons who, in reliance upon such provisions, become lenders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the lenders of Senior Indebtedness, and such lenders are hereby made obligees hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions.

3


        4.2     Subordination Rights Not Impaired by Acts or Omissions of Company or Lenders of Senior Indebtedness .    No right of any present or future lenders of the Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company, or by any noncompliance by the Company with the terms and provisions of this Note, regardless of any knowledge thereof which any such Lender may have or be otherwise charged with. The lenders of the Senior Indebtedness may, without in any way affecting the obligations of the Lender with respect hereto, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment of, change or extend the time of payment of, or renew or alter, the Senior Indebtedness or amend, modify or supplement any agreement or instrument governing or evidencing such Senior Indebtedness or any other document referred to therein, or exercise or refrain from exercising any other of their rights under the Senior Indebtedness including, without limitation, the waiver of default thereunder and the release of any collateral securing such Senior Indebtedness, all without notice to or assent from the Lender.

5.     SENIORITY

        The indebtedness evidenced by this Note shall rank senior to any other indebtedness owed by the Company other than the Senior Indebtedness and any obligations pertaining to letters of credit which are issued in replacement of letters of credit issued on the date hereof (the " Letters of Credit "), whether now existing or hereafter arising. The Company shall not enter into or assume any indebtedness, other than the Senior Indebtedness or the Letters of Credit, unless each lender or beneficiary of such indebtedness agrees in writing to subordinate all payments it may receive in

4



connection with such indebtedness and subject all such payments in right and time of payment to the Lender and the other holders of the Senior Subordinated Notes.

6.     REPAYMENT

        The Company may repay this Note, in whole or in part, at any time without the Lender's consent and without penalty or premium. All money paid toward the satisfaction of this Note shall be applied first to the payment of accrued and unpaid interest and then to the retirement of the principal. A prepayment of less than all of the unpaid principal amount of this Note shall not relieve the Company of its obligation to make the scheduled payment of the balance of the principal amount and any accrued and unpaid interest on this Note on the Maturity Date.

7.     PAYMENT PRO RATA TO ALL LENDERS.

        On the date hereof, certain other lenders are making loans to the Company pursuant to subordinated notes with terms which are substantially similar to those contained herein (the " Subordinated Notes "); together with the loans made hereunder, the principal amount under the Subordinated Notes on the date hereof is $16,000,000. The Company shall not make any payment with respect to any of the other Subordinated Notes (whether for principal, interest, expenses or otherwise), regardless of whether an Event of Default has occurred or is continuing or any insolvency proceeding has been instituted with respect to the Company, unless in each case all lenders under such Subordinated Notes are paid ratably in accordance with their respective interests in the aggregate Subordinated Notes outstanding (or ratably in accordance with amounts owed in the case of expenses).

8.     TRANSFER.

        The Lender may not assign, hypothecate, grant a security interest in or transfer all or a portion of its rights and interests in this Note. The Company may not assign or transfer all or any portion of this Note.

9.     BINDING EFFECT.

        This Note constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms subject to and as limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the rights and remedies of creditors and by equitable principles relating to enforcement to the extent applicable. The rights and obligations of the Company and the Lender shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

10.   WAIVER AND AMENDMENT.

        Any provision of this Note may be amended, supplemented, waived or modified upon the written consent of the Company and the Lender; provided , however , that the provisions of Section 2 and Section 5 may be amended, supplemented, waived or modified upon the written consent of the Company and the holders of more than 75% in principal amount of the Subordinated Notes. To the extent the Company agrees to amend, supplement, waive or modify any other Subordinated Note in a manner that is favorable to the lender under such Subordinated Note the Company shall offer to amend, supplement, waive or modify this Note in the same manner.

11.   REINSTATEMENT

        To the maximum extent permitted by law, this Note and the payment and other obligations of the Company hereunder (collectively, the " Obligations ") shall continue to be effective or be reinstated, as the case may be, if at any time any amount received by the Lender in respect of the Obligations is

5



rescinded or must otherwise be restored or returned by the Lender upon the insolvency, administration, bankruptcy, dissolution, liquidation or reorganization of the Company or any other person or entity or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for the Company or any other person or entity or any substantial part of its assets, or otherwise, all as though such payments had not been made.

12.   EXPENSES; INDEMNITY

13.   GOVERNING LAW.

        This Note is governed by, and shall be construed and enforced in accordance with, the laws of the State of New York.

[Remainder of Page Intentionally Left Blank.]

6


        IN WITNESS WHEREOF, the Company has caused this Note to be issued on the date first above written.

    PZENA INVESTMENT MANAGEMENT, LLC.

 

 

By:

 

/s/ WAYNE A. PALLADINO

Name: Wayne A. Palladino
Title: Chief Financial Officer

7




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Exhibit 4.5

THIS NOTE IS FOR INVESTMENT PURPOSES AND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT AND SUCH LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

PZENA INVESTMENT MANAGEMENT, LLC
SENIOR SUBORDINATED NOTE

        

$5,000,000
      New York, NY
October 28, 2008

        PZENA INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the " Company "), the principal office of which is located at 120 E. 45 th  Street, 20 th  Floor, New York, NY 10036, for value received hereby promises to pay to The Pzena Family 1996 Irrevocable Trust between Richard S. Pzena and Wendy M. Pzena dated December 30, 1996, Gregory Sawers, Trustee (the " Lender "), the sum of five million dollars ($5,000,000), or such lesser amount as shall then equal the outstanding principal amount hereof and any unpaid accrued interest hereon, as set forth below, on the earlier to occur of (i) ten (10) years from the date hereof (the " Maturity Date "), or (ii) when declared due and payable by the Lender upon the occurrence of an Event of Default (as defined hereinafter).

        The following is a statement of the rights of the Lender under this Subordinated Note (the " Note ") and the conditions to which this Note is subject, and to which the Lender, by the acceptance of this Note, agrees:

1.     INTEREST.

        The Company promises to pay interest in lawful money of the United States of America on the sum of the daily outstanding principal amount hereof from the date hereof until payment in full, which interest shall be payable at 6.3% per annum (the " Interest Rate "). Interest on the Note shall be payable in cash at the Interest Rate to the Lender, quarterly in arrears, on March 31, June 30, September 30 and December 31 in each year commencing December 31, 2008 (unless such day is not a business day, in which event on the next succeeding business day) (each such date an " Interest Payment Date "); provided , however , that interest shall not be permitted to be paid in cash to the extent that an event of default pursuant to Section 8.01(a) of the Credit Agreement (as defined below) has occurred and is continuing. To the extent interest which is due and payable has not been paid in cash on an Interest Payment Date, such interest shall be added to the principal amount hereunder and shall accrue interest at the Interest Rate. Interest shall be calculated on the basis of a 365-day year for the actual number of days elapsed. The Company shall be entitled to deduct and withhold from any payment pursuant to this Note such amounts as are required to be withheld with respect to the Lender by applicable law. The Lender shall provide any documentation or certification required to establish that the Lender is entitled to an exemption from or reduction in the amount of withholding taxes.

2.     RESTRICTED PAYMENTS.

        The Company shall not declare or make, directly or indirectly, any Restricted Payment (as defined below), or incur any obligation (contingent or otherwise) to do so, except that:


        " Restricted Payment " means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other equity interest of the Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other equity interest, or on account of any return of capital to the Company's stockholders, partners or members (or the equivalent Person thereof).

3.     EVENTS OF DEFAULT.

        If any of the events specified in this Section 3 shall occur (herein individually referred to as an " Event of Default "), the Lender may, so long as such condition exists, declare the entire principal and unpaid accrued interest hereon immediately due and payable, by notice in writing to the Company:

        " Change of Control " shall mean (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the current officers (including Richard S. Pzena) and other employees of the Company (together with any trust or other estate planning vehicle of which the beneficiaries are the immediate family members of such officers or employees)

2


becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the aggregate voting rights of all classes of equity securities of PIM entitled to vote for members of the board of directors of PIM on a fully-diluted basis, (ii) PIM ceases to be the managing member of the Company or (iii) PIM or the Company sells or transfers all or substantially all of its assets.

4.     SUBORDINATION.

        The indebtedness evidenced by this Note is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all the Company's existing and future indebtedness under the Credit Agreement dated as of July 23, 2007 (the " Credit Agreement "), among the Company, each lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent (the " Senior Agent ") and L/C Issuer, as such agreement is amended, waived or otherwise modified from time to time (such indebtedness, the " Senior Indebtedness ").

        4.1     Subordination of Liabilities .    Lender by its acceptance of this Note covenants and agrees, that the payment of the principal of this Note (the " Subordinated Indebtedness ") is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, to the prior payment in full in cash of all Senior Indebtedness. The provisions of this Section 4 shall constitute a continuing offer to all persons who, in reliance upon such provisions, become lenders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the lenders of Senior Indebtedness, and such lenders are hereby made obligees hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions.

        (a)     Payments with Respect to Subordinated Indebtedness.     

        (b)     Subrogation .    The Lender of this Note shall not be subrogated to the rights of the lenders of Senior Indebtedness to receive payments or distributions of assets of the Company made on the Senior Indebtedness until 91 days after the discharge of the Senior Indebtedness, and for the purpose of such subrogation no payments or distributions to the lenders of the Senior Indebtedness by or on behalf of the Company or by or on behalf of the Lender of this Note shall, as between the Company, its creditors other than the lenders of Senior Indebtedness, and the Lender of this Note, be deemed to be

3


payment by the Company to or on account of the Senior Indebtedness, it being understood that the provisions of this Section 4 are and are intended solely for the purpose of defining the relative rights of the Lender of this Note, on the one hand, and the lenders of the Senior Indebtedness, on the other hand. No lender of Senior Indebtedness shall have any obligation or duty to protect the Lender's rights of subrogation arising pursuant to this Note or under any applicable Law, nor shall any lender of Senior Indebtedness be liable for any loss to, or impairment of, any subrogation rights held by the Lender.

        (c)     Obligation of the Company Unconditional .    Nothing contained in this Section 4 or otherwise in this Note is intended to or shall impair, as between the Company and the Lender, the obligation of the Company, which is absolute and unconditional, to pay to the Lender the principal of the interest on this Note as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Lender and creditors of the Company other than the lenders of the Senior Indebtedness, nor shall anything herein or therein prevent the Lender from exercising all remedies otherwise permitted by applicable law upon an event of default under this Note, subject to the limitations, if any, under this Section 4 or the rights of lenders to exercise rights and remedies, and subject to the rights, if any, under this Section 4 of the lenders of Senior Indebtedness in respect of cash, property, or securities of the Company received upon the exercise of any such remedy. Upon any distribution of assets of the Company referred to in this Section 4, the Lender shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding up, liquidation or reorganization proceedings are pending, or a certificate of the liquidating trustee or agent or other person making any distribution to the Lender, for the purpose of ascertaining the persons entitled to participate in such distribution, the lenders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 4.

        (d)     Notice of Events of Default .    The Lender agrees to give notice of any Event of Default hereunder to the Senior Agent within 5 Business Days of its knowledge thereof.

        4.2     Subordination Rights Not Impaired by Acts or Omissions of Company or Lenders of Senior Indebtedness .    No right of any present or future lenders of the Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company, or by any noncompliance by the Company with the terms and provisions of this Note, regardless of any knowledge thereof which any such Lender may have or be otherwise charged with. The lenders of the Senior Indebtedness may, without in any way affecting the obligations of the Lender with respect hereto, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment of, change or extend the time of payment of, or renew or alter, the Senior Indebtedness or amend, modify or supplement any agreement or instrument governing or evidencing such Senior Indebtedness or any other document referred to therein, or exercise or refrain from exercising any other of their rights under the Senior Indebtedness including, without limitation, the waiver of default thereunder and the release of any collateral securing such Senior Indebtedness, all without notice to or assent from the Lender.

5.     SENIORITY

        The indebtedness evidenced by this Note shall rank senior to any other indebtedness owed by the Company other than the Senior Indebtedness and any obligations pertaining to letters of credit which are issued in replacement of letters of credit issued on the date hereof (the " Letters of Credit "), whether now existing or hereafter arising. The Company shall not enter into or assume any indebtedness, other than the Senior Indebtedness or the Letters of Credit, unless each lender or beneficiary of such indebtedness agrees in writing to subordinate all payments it may receive in

4



connection with such indebtedness and subject all such payments in right and time of payment to the Lender and the other holders of the Senior Subordinated Notes.

6.     REPAYMENT

        The Company may repay this Note, in whole or in part, at any time without the Lender's consent and without penalty or premium. All money paid toward the satisfaction of this Note shall be applied first to the payment of accrued and unpaid interest and then to the retirement of the principal. A prepayment of less than all of the unpaid principal amount of this Note shall not relieve the Company of its obligation to make the scheduled payment of the balance of the principal amount and any accrued and unpaid interest on this Note on the Maturity Date.

7.     PAYMENT PRO RATA TO ALL LENDERS.

        On the date hereof, certain other lenders are making loans to the Company pursuant to subordinated notes with terms which are substantially similar to those contained herein (the " Subordinated Notes "); together with the loans made hereunder, the principal amount under the Subordinated Notes on the date hereof is $16,000,000. The Company shall not make any payment with respect to any of the other Subordinated Notes (whether for principal, interest, expenses or otherwise), regardless of whether an Event of Default has occurred or is continuing or any insolvency proceeding has been instituted with respect to the Company, unless in each case all lenders under such Subordinated Notes are paid ratably in accordance with their respective interests in the aggregate Subordinated Notes outstanding (or ratably in accordance with amounts owed in the case of expenses).

8.     TRANSFER.

        The Lender may not assign, hypothecate, grant a security interest in or transfer all or a portion of its rights and interests in this Note. The Company may not assign or transfer all or any portion of this Note.

9.     BINDING EFFECT.

        This Note constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms subject to and as limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the rights and remedies of creditors and by equitable principles relating to enforcement to the extent applicable. The rights and obligations of the Company and the Lender shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

10.   WAIVER AND AMENDMENT.

        Any provision of this Note may be amended, supplemented, waived or modified upon the written consent of the Company and the Lender; provided , however , that the provisions of Section 2 and Section 5 may be amended, supplemented, waived or modified upon the written consent of the Company and the holders of more than 75% in principal amount of the Subordinated Notes. To the extent the Company agrees to amend, supplement, waive or modify any other Subordinated Note in a manner that is favorable to the lender under such Subordinated Note the Company shall offer to amend, supplement, waive or modify this Note in the same manner.

11.   REINSTATEMENT

        To the maximum extent permitted by law, this Note and the payment and other obligations of the Company hereunder (collectively, the " Obligations ") shall continue to be effective or be reinstated, as the case may be, if at any time any amount received by the Lender in respect of the Obligations is

5



rescinded or must otherwise be restored or returned by the Lender upon the insolvency, administration, bankruptcy, dissolution, liquidation or reorganization of the Company or any other person or entity or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for the Company or any other person or entity or any substantial part of its assets, or otherwise, all as though such payments had not been made.

12.   EXPENSES; INDEMNITY

        (a)     Costs and Expenses .    The Company shall pay (i) all reasonable documented out-of-pocket expenses incurred by the Lender (including the reasonable fees, charges and disbursements of counsel for the Lender), in connection with the preparation, negotiation, execution, delivery and administration of this Note or any amendments, modifications or waivers of the provisions hereof, and (ii) all documented out-of-pocket expenses incurred by the Lender (including the reasonable fees, charges and disbursements of any counsel for the Lender) in connection with the enforcement or protection of its rights in connection with this Note, including its rights under this Section, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Note.

        (b)     Indemnification by the Company .    The Company shall indemnify the Lender (and any agent thereof), and each member of Lender (each such person being called an " Indemnitee ") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable documented fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Company or arising out of, in connection with, or as a result of (i) the execution or delivery of this Note or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the administration of this Note, or (ii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (y) do not involve a direct act or omission of the Company or its subsidiaries and are brought by an Indemnitee against any other Indemnitee.

        (c)     Waiver of Consequential Damages, Etc.     To the fullest extent permitted by applicable law, the Company shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Note or any agreement or instrument contemplated hereby, or the use of the proceeds thereof.

        (d)     Payments .    All amounts due under this Section shall be payable not later than ten business days after demand therefor.

        (e)     Survival .    The agreements in this Section shall survive the repayment, satisfaction or discharge of the Note.

13.   GOVERNING LAW.

        This Note is governed by, and shall be construed and enforced in accordance with, the laws of the State of New York.

[Remainder of Page Intentionally Left Blank.]

6


        IN WITNESS WHEREOF, the Company has caused this Note to be issued on the date first above written.

    PZENA INVESTMENT MANAGEMENT, LLC.

 

 

By:

 

/s/ WAYNE A. PALLADINO

Name: Wayne A. Palladino
Title: Chief Financial Officer

7




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Exhibit 4.6

THIS NOTE IS FOR INVESTMENT PURPOSES AND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT AND SUCH LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

PZENA INVESTMENT MANAGEMENT, LLC
SENIOR SUBORDINATED NOTE

$5,000,000   New York, NY
October 28, 2008

        PZENA INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the " Company "), the principal office of which is located at 120 E. 45 th  Street, 20 th  Floor, New York, NY 10036, for value received hereby promises to pay to Milestone Associates, L.L.C. (the " Lender "), the sum of five million dollars ($5,000,000), or such lesser amount as shall then equal the outstanding principal amount hereof and any unpaid accrued interest hereon, as set forth below, on the earlier to occur of (i) ten (10) years from the date hereof (the " Maturity Date "), or (ii) when declared due and payable by the Lender upon the occurrence of an Event of Default (as defined hereinafter).

        The following is a statement of the rights of the Lender under this Subordinated Note (the " Note ") and the conditions to which this Note is subject, and to which the Lender, by the acceptance of this Note, agrees:

1.     INTEREST.

        The Company promises to pay interest in lawful money of the United States of America on the sum of the daily outstanding principal amount hereof from the date hereof until payment in full, which interest shall be payable at 6.3% per annum (the " Interest Rate "). Interest on the Note shall be payable in cash at the Interest Rate to the Lender, quarterly in arrears, on March 31, June 30, September 30 and December 31 in each year commencing December 31, 2008 (unless such day is not a business day, in which event on the next succeeding business day) (each such date an " Interest Payment Date "); provided, however, that interest shall not be permitted to be paid in cash to the extent that an event of default pursuant to Section 8.01(a) of the Credit Agreement (as defined below) has occurred and is continuing. To the extent interest which is due and payable has not been paid in cash on an Interest Payment Date, such interest shall be added to the principal amount hereunder and shall accrue interest at the Interest Rate. Interest shall be calculated on the basis of a 365-day year for the actual number of days elapsed. The Company shall be entitled to deduct and withhold from any payment pursuant to this Note such amounts as are required to be withheld with respect to the Lender by applicable law. The Lender shall provide any documentation or certification required to establish that the Lender is entitled to an exemption from or reduction in the amount of withholding taxes.

2.     RESTRICTED PAYMENTS.

        The Company shall not declare or make, directly or indirectly, any Restricted Payment (as defined below), or incur any obligation (contingent or otherwise) to do so, except that:


        " Restricted Payment " means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other equity interest of the Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other equity interest, or on account of any return of capital to the Company's stockholders, partners or members (or the equivalent Person thereof).

3.     EVENTS OF DEFAULT.

        If any of the events specified in this Section 3 shall occur (herein individually referred to as an " Event of Default "), the Lender may, so long as such condition exists, declare the entire principal and unpaid accrued interest hereon immediately due and payable, by notice in writing to the Company:

        " Change of Control " shall mean (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the current officers (including Richard S. Pzena) and other employees of the Company (together with any trust or other estate planning vehicle of which the beneficiaries are the immediate family members of such officers or

2


employees) becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the aggregate voting rights of all classes of equity securities of PIM entitled to vote for members of the board of directors of PIM on a fully-diluted basis, (ii) PIM ceases to be the managing member of the Company or (iii) PIM or the Company sells or transfers all or substantially all of its assets.

4.     SUBORDINATION.

        The indebtedness evidenced by this Note is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all the Company's existing and future indebtedness under the Credit Agreement dated as of July 23, 2007 (the " Credit Agreement "), among the Company, each lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent (the " Senior Agent ") and L/C Issuer, as such agreement is amended, waived or otherwise modified from time to time (such indebtedness, the " Senior Indebtedness ").

        4.1     Subordination of Liabilities.     Lender by its acceptance of this Note covenants and agrees, that the payment of the principal of this Note (the " Subordinated Indebtedness ") is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, to the prior payment in full in cash of all Senior Indebtedness. The provisions of this Section 4 shall constitute a continuing offer to all persons who, in reliance upon such provisions, become lenders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the lenders of Senior Indebtedness, and such lenders are hereby made obligees hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions.

3


        4.2     Subordination Rights Not Impaired by Acts or Omissions of Company or Lenders of Senior Indebtedness.     No right of any present or future lenders of the Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company, or by any noncompliance by the Company with the terms and provisions of this Note, regardless of any knowledge thereof which any such Lender may have or be otherwise charged with. The lenders of the Senior Indebtedness may, without in any way affecting the obligations of the Lender with respect hereto, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment of, change or extend the time of payment of, or renew or alter, the Senior Indebtedness or amend, modify or supplement any agreement or instrument governing or evidencing such Senior Indebtedness or any other document referred to therein, or exercise or refrain from exercising any other of their rights under the Senior Indebtedness including, without limitation, the waiver of default thereunder and the release of any collateral securing such Senior Indebtedness, all without notice to or assent from the Lender.

5.     SENIORITY

        The indebtedness evidenced by this Note shall rank senior to any other indebtedness owed by the Company other than the Senior Indebtedness and any obligations pertaining to letters of credit which are issued in replacement of letters of credit issued on the date hereof (the " Letters of Credit "), whether now existing or hereafter arising. The Company shall not enter into or assume any indebtedness, other than the Senior Indebtedness or the Letters of Credit, unless each lender or beneficiary of such indebtedness agrees in writing to subordinate all payments it may receive in

4



connection with such indebtedness and subject all such payments in right and time of payment to the Lender and the other holders of the Senior Subordinated Notes.

6.     REPAYMENT

        The Company may repay this Note, in whole or in part, at any time without the Lender's consent and without penalty or premium. All money paid toward the satisfaction of this Note shall be applied first to the payment of accrued and unpaid interest and then to the retirement of the principal. A prepayment of less than all of the unpaid principal amount of this Note shall not relieve the Company of its obligation to make the scheduled payment of the balance of the principal amount and any accrued and unpaid interest on this Note on the Maturity Date.

7.     PAYMENT PRO RATA TO ALL LENDERS.

        On the date hereof, certain other lenders are making loans to the Company pursuant to subordinated notes with terms which are substantially similar to those contained herein (the " Subordinated Notes "); together with the loans made hereunder, the principal amount under the Subordinated Notes on the date hereof is $16,000,000. The Company shall not make any payment with respect to any of the other Subordinated Notes (whether for principal, interest, expenses or otherwise), regardless of whether an Event of Default has occurred or is continuing or any insolvency proceeding has been instituted with respect to the Company, unless in each case all lenders under such Subordinated Notes are paid ratably in accordance with their respective interests in the aggregate Subordinated Notes outstanding (or ratably in accordance with amounts owed in the case of expenses).

8.     TRANSFER.

        The Lender may not assign, hypothecate, grant a security interest in or transfer all or a portion of its rights and interests in this Note. The Company may not assign or transfer all or any portion of this Note.

9.     BINDING EFFECT.

        This Note constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms subject to and as limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the rights and remedies of creditors and by equitable principles relating to enforcement to the extent applicable. The rights and obligations of the Company and the Lender shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

10.   WAIVER AND AMENDMENT.

        Any provision of this Note may be amended, supplemented, waived or modified upon the written consent of the Company and the Lender; provided, however, that the provisions of Section 2 and Section 5 may be amended, supplemented, waived or modified upon the written consent of the Company and the holders of more than 75% in principal amount of the Subordinated Notes. To the extent the Company agrees to amend, supplement, waive or modify any other Subordinated Note in a manner that is favorable to the lender under such Subordinated Note the Company shall offer to amend, supplement, waive or modify this Note in the same manner.

11.   REINSTATEMENT

        To the maximum extent permitted by law, this Note and the payment and other obligations of the Company hereunder (collectively, the " Obligations ") shall continue to be effective or be reinstated, as the case may be, if at any time any amount received by the Lender in respect of the Obligations is

5



rescinded or must otherwise be restored or returned by the Lender upon the insolvency, administration, bankruptcy, dissolution, liquidation or reorganization of the Company or any other person or entity or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for the Company or any other person or entity or any substantial part of its assets, or otherwise, all as though such payments had not been made.

12.   EXPENSES; INDEMNITY

        (a)     Costs and Expenses.     The Company shall pay (i) all reasonable documented out-of-pocket expenses incurred by the Lender (including the reasonable fees, charges and disbursements of counsel for the Lender), in connection with the preparation, negotiation, execution, delivery and administration of this Note or any amendments, modifications or waivers of the provisions hereof, and (ii) all documented out-of-pocket expenses incurred by the Lender (including the reasonable fees, charges and disbursements of any counsel for the Lender) in connection with the enforcement or protection of its rights in connection with this Note, including its rights under this Section, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Note.

        (b)     Indemnification by the Company.     The Company shall indemnify the Lender (and any agent thereof), and each member of Lender (each such person being called an " Indemnitee ") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable documented fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Company or arising out of, in connection with, or as a result of (i) the execution or delivery of this Note or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the administration of this Note, or (ii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (y) do not involve a direct act or omission of the Company or its subsidiaries and are brought by an Indemnitee against any other Indemnitee.

        (c)     Waiver of Consequential Damages, Etc.     To the fullest extent permitted by applicable law, the Company shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Note or any agreement or instrument contemplated hereby, or the use of the proceeds thereof.

        (d)     Payments.     All amounts due under this Section shall be payable not later than ten business days after demand therefor.

        (e)     Survival.     The agreements in this Section shall survive the repayment, satisfaction or discharge of the Note.

13.   GOVERNING LAW.

        This Note is governed by, and shall be construed and enforced in accordance with, the laws of the State of New York.

[Remainder of Page Intentionally Left Blank.]

6


        IN WITNESS WHEREOF, the Company has caused this Note to be issued on the date first above written.

    PZENA INVESTMENT MANAGEMENT, LLC.

 

 

By:

 

/s/ WAYNE A. PALLADINO

Name: Wayne A. Palladino
Title: Chief Financial Officer

7




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Exhibit 4.7

THIS NOTE IS FOR INVESTMENT PURPOSES AND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT AND SUCH LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.


PZENA INVESTMENT MANAGEMENT, LLC
SENIOR SUBORDINATED NOTE

$1,000,000

  New York, NY
October 28, 2008

        PZENA INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the " Company "), the principal office of which is located at 120 E. 45 th  Street, 20 th  Floor, New York, NY 10036, for value received hereby promises to pay to Amelia Jones Feinberg (the " Lender "), the sum of one million dollars ($1,000,000), or such lesser amount as shall then equal the outstanding principal amount hereof and any unpaid accrued interest hereon, as set forth below, on the earlier to occur of (i) ten (10) years from the date hereof (the " Maturity Date "), or (ii) when declared due and payable by the Lender upon the occurrence of an Event of Default (as defined hereinafter).

        The following is a statement of the rights of the Lender under this Subordinated Note (the " Note ") and the conditions to which this Note is subject, and to which the Lender, by the acceptance of this Note, agrees:

1.     INTEREST.

        The Company promises to pay interest in lawful money of the United States of America on the sum of the daily outstanding principal amount hereof from the date hereof until payment in full, which interest shall be payable at 6.3% per annum (the " Interest Rate "). Interest on the Note shall be payable in cash at the Interest Rate to the Lender, quarterly in arrears, on March 31, June 30, September 30 and December 31 in each year commencing December 31, 2008 (unless such day is not a business day, in which event on the next succeeding business day) (each such date an " Interest Payment Date "); provided , however , that interest shall not be permitted to be paid in cash to the extent that an event of default pursuant to Section 8.01(a) of the Credit Agreement (as defined below) has occurred and is continuing. To the extent interest which is due and payable has not been paid in cash on an Interest Payment Date, such interest shall be added to the principal amount hereunder and shall accrue interest at the Interest Rate. Interest shall be calculated on the basis of a 365-day year for the actual number of days elapsed. The Company shall be entitled to deduct and withhold from any payment pursuant to this Note such amounts as are required to be withheld with respect to the Lender by applicable law. The Lender shall provide any documentation or certification required to establish that the Lender is entitled to an exemption from or reduction in the amount of withholding taxes.

2.     RESTRICTED PAYMENTS.

        The Company shall not declare or make, directly or indirectly, any Restricted Payment (as defined below), or incur any obligation (contingent or otherwise) to do so, except that:


        " Restricted Payment " means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other equity interest of the Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other equity interest, or on account of any return of capital to the Company's stockholders, partners or members (or the equivalent Person thereof).

3.     EVENTS OF DEFAULT.

        If any of the events specified in this Section 3 shall occur (herein individually referred to as an " Event of Default "), the Lender may, so long as such condition exists, declare the entire principal and unpaid accrued interest hereon immediately due and payable, by notice in writing to the Company:

        " Change of Control " shall mean (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the current officers (including Richard S. Pzena) and other employees of the Company (together with any trust or other estate planning vehicle of which the beneficiaries are the immediate family members of such officers or employees)

2


becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the aggregate voting rights of all classes of equity securities of PIM entitled to vote for members of the board of directors of PIM on a fully-diluted basis, (ii) PIM ceases to be the managing member of the Company or (iii) PIM or the Company sells or transfers all or substantially all of its assets.

4.     SUBORDINATION.

        The indebtedness evidenced by this Note is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all the Company's existing and future indebtedness under the Credit Agreement dated as of July 23, 2007 (the " Credit Agreement "), among the Company, each lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent (the " Senior Agent ") and L/C Issuer, as such agreement is amended, waived or otherwise modified from time to time (such indebtedness, the " Senior Indebtedness ").

        4.1     Subordination of Liabilities .    Lender by its acceptance of this Note covenants and agrees, that the payment of the principal of this Note (the " Subordinated Indebtedness ") is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, to the prior payment in full in cash of all Senior Indebtedness. The provisions of this Section 4 shall constitute a continuing offer to all persons who, in reliance upon such provisions, become lenders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the lenders of Senior Indebtedness, and such lenders are hereby made obligees hereunder the same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions.

3


        4.2     Subordination Rights Not Impaired by Acts or Omissions of Company or Lenders of Senior Indebtedness .    No right of any present or future lenders of the Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company, or by any noncompliance by the Company with the terms and provisions of this Note, regardless of any knowledge thereof which any such Lender may have or be otherwise charged with. The lenders of the Senior Indebtedness may, without in any way affecting the obligations of the Lender with respect hereto, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment of, change or extend the time of payment of, or renew or alter, the Senior Indebtedness or amend, modify or supplement any agreement or instrument governing or evidencing such Senior Indebtedness or any other document referred to therein, or exercise or refrain from exercising any other of their rights under the Senior Indebtedness including, without limitation, the waiver of default thereunder and the release of any collateral securing such Senior Indebtedness, all without notice to or assent from the Lender.

5.     SENIORITY

        The indebtedness evidenced by this Note shall rank senior to any other indebtedness owed by the Company other than the Senior Indebtedness and any obligations pertaining to letters of credit which are issued in replacement of letters of credit issued on the date hereof (the " Letters of Credit "), whether now existing or hereafter arising. The Company shall not enter into or assume any indebtedness, other than the Senior Indebtedness or the Letters of Credit, unless each lender or beneficiary of such indebtedness agrees in writing to subordinate all payments it may receive in

4



connection with such indebtedness and subject all such payments in right and time of payment to the Lender and the other holders of the Senior Subordinated Notes.

6.     REPAYMENT

        The Company may repay this Note, in whole or in part, at any time without the Lender's consent and without penalty or premium. All money paid toward the satisfaction of this Note shall be applied first to the payment of accrued and unpaid interest and then to the retirement of the principal. A prepayment of less than all of the unpaid principal amount of this Note shall not relieve the Company of its obligation to make the scheduled payment of the balance of the principal amount and any accrued and unpaid interest on this Note on the Maturity Date.

7.     PAYMENT PRO RATA TO ALL LENDERS.

        On the date hereof, certain other lenders are making loans to the Company pursuant to subordinated notes with terms which are substantially similar to those contained herein (the " Subordinated Notes "); together with the loans made hereunder, the principal amount under the Subordinated Notes on the date hereof is $16,000,000. The Company shall not make any payment with respect to any of the other Subordinated Notes (whether for principal, interest, expenses or otherwise), regardless of whether an Event of Default has occurred or is continuing or any insolvency proceeding has been instituted with respect to the Company, unless in each case all lenders under such Subordinated Notes are paid ratably in accordance with their respective interests in the aggregate Subordinated Notes outstanding (or ratably in accordance with amounts owed in the case of expenses).

8.     TRANSFER.

        The Lender may not assign, hypothecate, grant a security interest in or transfer all or a portion of its rights and interests in this Note. The Company may not assign or transfer all or any portion of this Note.

9.     BINDING EFFECT.

        This Note constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms subject to and as limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the rights and remedies of creditors and by equitable principles relating to enforcement to the extent applicable. The rights and obligations of the Company and the Lender shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

10.   WAIVER AND AMENDMENT.

        Any provision of this Note may be amended, supplemented, waived or modified upon the written consent of the Company and the Lender; provided , however , that the provisions of Section 2 and Section 5 may be amended, supplemented, waived or modified upon the written consent of the Company and the holders of more than 75% in principal amount of the Subordinated Notes. To the extent the Company agrees to amend, supplement, waive or modify any other Subordinated Note in a manner that is favorable to the lender under such Subordinated Note the Company shall offer to amend, supplement, waive or modify this Note in the same manner.

11.   REINSTATEMENT

        To the maximum extent permitted by law, this Note and the payment and other obligations of the Company hereunder (collectively, the " Obligations ") shall continue to be effective or be reinstated, as the case may be, if at any time any amount received by the Lender in respect of the Obligations is

5



rescinded or must otherwise be restored or returned by the Lender upon the insolvency, administration, bankruptcy, dissolution, liquidation or reorganization of the Company or any other person or entity or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for the Company or any other person or entity or any substantial part of its assets, or otherwise, all as though such payments had not been made.

12.   EXPENSES; INDEMNITY

13.   GOVERNING LAW.

        This Note is governed by, and shall be construed and enforced in accordance with, the laws of the State of New York.

[Remainder of Page Intentionally Left Blank.]

6


        IN WITNESS WHEREOF, the Company has caused this Note to be issued on the date first above written.

    PZENA INVESTMENT MANAGEMENT, LLC.

 

 

By:

 

/s/ WAYNE A. PALLADINO

Name: Wayne A. Palladino
Title: Chief Financial Officer

7




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Exhibit 10.2

AMENDMENT NO. 3 TO CREDIT AGREEMENT
AND LIMITED CONSENT AND WAIVER

         THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT AND LIMITED CONSENT AND WAIVER (this " Amendment "), dated as of October 28, 2008, is made by and among PZENA INVESTMENT MANAGEMENT, LLC , a Delaware limited liability company (the " Borrower "), each of the Guarantors (as defined in the Credit Agreement described below), BANK OF AMERICA, N.A. , a national banking association organized and existing under the laws of the United States (" Bank of America "), in its capacity as administrative agent for the Lenders (in such capacity, the " Administrative Agent "), and each of the Lenders signatory hereto.

W I T N E S S E T H:

         WHEREAS , the Borrower, Bank of America, as Administrative Agent and L/C Issuer, and the Lenders have entered into that Credit Agreement, dated as of July 23, 2007 (as amended by Amendment No. 1 dated February 11, 2008, Amendment No. 2 dated September 22, 2008, as hereby amended and as from time to time hereafter further amended, modified, supplemented, restated, or amended and restated, the " Credit Agreement "; capitalized terms used in this Amendment not otherwise defined herein shall have the respective meanings given thereto in the Credit Agreement), pursuant to which the Lenders have made available to Borrower a term loan facility and a revolving credit facility with a letter of credit sublimit;

         WHEREAS , as a condition to making the term loan facility and the revolving credit facility available to the Borrower the Lenders have required that certain Subsidiaries of the Borrower guarantee payment of the Obligations;

         WHEREAS , the Borrower has requested that the Required Lenders consent to amend certain provisions of the Credit Agreement, including, among other things, the deletion of the minimum Assets Under Management requirement in Section 7.10(a) , as more particularly set forth below, and the Administrative Agent and the Lenders signatory hereto are willing to effect such amendment on the terms and conditions contained in this Amendment;

         NOW, THEREFORE , in consideration of the premises and further valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

        1.     Amendments to Credit Agreement.     Subject to the terms and conditions set forth herein, the Credit Agreement is hereby amended such that, after giving effect to all such amendments, it shall read in its entirety as attached hereto as Annex I.

        2.     Limited Waiver.     Subject to the terms and conditions set forth herein, and in reliance upon the representations and warranties of the Borrower made herein, (a) with respect to the prepayments made pursuant to Sections 3(b) and (c) below, the Administrative Agent and the Lenders signatory hereto hereby waive the notice requirements set forth in Section 2.05(a) regarding the prepayment of Loans under the Revolving Credit Facility and the Term Loan Facility and (b) the Administrative Agent and the Lenders signatory hereto waive any prepayment required by Section 2.05(c) (before giving effect to this Amendment).

        The waivers set forth in this Section 2 is limited to the extent specifically set forth above and no other terms, covenants or provisions of the Credit Agreement or any other Loan Document are intended to be affected hereby.


        3.     Effectiveness; Conditions Precedent.     The effectiveness of this Amendment and the amendments to the Credit Agreement herein provided are subject to the satisfaction of the following conditions precedent:

        4.     Consent and Confirmation of the Guarantors.     Each of the Guarantors hereby consents, acknowledges and agrees to the amendments set forth herein and hereby confirms and ratifies in all respects the Guaranty (including without limitation the continuation of each such Guarantor's payment and performance obligations thereunder upon and after the effectiveness of this Amendment and the amendments contemplated hereby) and the enforceability of the Guaranty against each Guarantor in accordance with its terms.

        5.     Representations and Warranties.     In order to induce the Administrative Agent and the Lenders to enter into this Amendment, the Borrower represents and warrants to the Administrative Agent and the Lenders as follows:

2


        6.     Release.     In consideration of the Administrative Agent and the Required Lenders entering into this Amendment on behalf of the Lenders, the Loan Parties hereby release the Administrative Agent, the L/C Issuer, each of the Lenders, and the Administrative Agent's, the L/C Issuer's and each of the Lender's respective officers, employees, representatives, agents, counsel and directors from any and all actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, now known or unknown, suspected or unsuspected to the extent that any of the foregoing arises from any action or failure to act solely in connection with the Loan Documents on or prior to the date hereof.

        7.     Entire Agreement.     This Amendment, together with the Loan Documents (collectively, the " Relevant Documents "), sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter. No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to the other in relation to the subject matter hereof or thereof. None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance with Section 10.01 of the Credit Agreement.

        8.     Full Force and Effect of Amendment.     Except as hereby specifically amended, modified or supplemented, the Credit Agreement and all other Loan Documents are hereby confirmed and ratified in all respects and shall be and remain in full force and effect according to their respective terms.

        9.     Counterparts.     This Amendment may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, facsimile or other electronic transmission (including .PDF) shall be effective as delivery of a manually executed counterpart of this Amendment.

        10.     Governing Law.     This Amendment shall in all respects be governed by, and construed in accordance with, the laws of the State of New York.

3


        11.     Enforceability.     Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.

        12.     References.     All references in any of the Loan Documents to the "Credit Agreement" shall mean the Credit Agreement, as amended hereby.

        13.     Successors and Assigns.     This Amendment shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, the Guarantors, the Lenders and their respective successors and assignees to the extent such assignees are permitted assignees as provided in Section 10.06 of the Credit Agreement.

        14.     Legal Opinion.     The Borrower shall deliver to the Administrative Agent no later than ten (10) Business Days following the date hereof a favorable opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request.

[Signature pages follow.]

4


         IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made, executed and delivered by their duly authorized officers as of the day and year first above written.

    PZENA INVESTMENT MANAGEMENT, LLC

 

 

By:

 

/s/ WAYNE A. PALLADINO

        Name:   Wayne A. Palladino

        Title:   Chief Financial Officer


 

 

GUARANTOR:

 

 

PZENA ALTERNATIVE INVESTMENTS, LLC

 

 

By:

 

/s/ LAWRENCE KOHN

        Name:   Lawrence Kohn

        Title:   President

Signature Page to Amendment No. 3


    ADMINISTRATIVE AGENT:

 

 

BANK OF AMERICA, N.A., as Administrative Agent

 

 

By:

 

/s/ FRED ZAGAR

        Name:   Fred Zagar

        Title:   Senior Vice President


    BANK OF AMERICA, N.A., as a Lender

 

 

By:

 

/s/ FRED ZAGAR

        Name:   Fred Zagar

        Title:   Senior Vice President



Annex I

CREDIT AGREEMENT



Annex II


EXHIBIT G


FORM OF SECURITY AGREEMENT

To be attached



Annex I to Amendment No. 3


CREDIT AGREEMENT

Dated as of July 23, 2007

among


PZENA INVESTMENT MANAGEMENT, LLC
as the Borrower,


BANK OF AMERICA, N.A.,
as Administrative Agent
and
L/C Issuer,

and

The Other Lenders Party Hereto



TABLE OF CONTENTS

Section
   
  Page

ARTICLE I.

 

DEFINITIONS AND ACCOUNTING TERMS

  1
 

1.01

 

Defined Terms

 
1
 

1.02

 

Other Interpretive Provisions

  19
 

1.03

 

Accounting Terms

  19
 

1.04

 

Rounding

  20
 

1.05

 

Times of Day

  20
 

1.06

 

Letter of Credit Amounts

  20
 

1.07

 

Exchange Rates; Currency Equivalents

  20
 

1.08

 

Additional Alternative Currencies

  20
 

1.09

 

Change of Currency

  21

ARTICLE II.

 

THE COMMITMENTS AND CREDIT EXTENSIONS

 
21
 

2.01

 

Term Loan

 
21
 

2.02

 

Revolving Loans

  22
 

2.03

 

Borrowings, Conversions and Continuations of Loans

  22
 

2.04

 

Letters of Credit

  24
 

2.05

 

Prepayments

  31
 

2.06

 

Termination or Reduction of Commitments

  32
 

2.07

 

Repayment of Loans

  32
 

2.08

 

Interest

  32
 

2.09

 

Fees

  33
 

2.10

 

Computation of Interest and Fees

  33
 

2.11

 

Evidence of Debt

  33
 

2.12

 

Payments Generally; Administrative Agent's Clawback

  34
 

2.13

 

Sharing of Payments by Lenders

  35

ARTICLE III.

 

TAXES, YIELD PROTECTION AND ILLEGALITY

 
36
 

3.01

 

Taxes

 
36
 

3.02

 

Illegality

  38
 

3.03

 

Inability to Determine Rates

  38
 

3.04

 

Increased Costs; Reserves on Eurodollar Rate Loans

  39
 

3.05

 

Compensation for Losses

  40
 

3.06

 

Mitigation Obligations; Replacement of Lenders

  40
 

3.07

 

Survival

  41

ARTICLE IV.

 

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

 
41
 

4.01

 

Conditions of Initial Credit Extension

 
41
 

4.02

 

Conditions to all Credit Extensions

  42

ARTICLE V.

 

REPRESENTATIONS AND WARRANTIES

 
43
 

5.01

 

Existence, Qualification and Power

 
43
 

5.02

 

Authorization; No Contravention

  43
 

5.03

 

Governmental Authorization; Other Consents

  43
 

5.04

 

Binding Effect

  43
 

5.05

 

Financial Statements; No Material Adverse Effect

  43
 

5.06

 

Litigation

  44
 

5.07

 

No Default

  44

i


Section
   
  Page
 

5.08

 

Ownership of Property; Liens

  44
 

5.09

 

Insurance

  44
 

5.10

 

Taxes

  44
 

5.11

 

ERISA Compliance

  44
 

5.12

 

Subsidiaries

  44
 

5.13

 

Margin Regulations; Investment Company Act

  44
 

5.14

 

Disclosure

  44
 

5.15

 

Compliance with Laws

  44
 

5.16

 

Taxpayer Identification Number

  44
 

5.17

 

Intellectual Property; Licenses, Etc

  44
 

5.18

 

Security Interest

  44

ARTICLE VI.

 

AFFIRMATIVE COVENANTS

 
46
 

6.01

 

Financial Statements

 
46
 

6.02

 

Certificates; Other Information

  47
 

6.03

 

Notices

  49
 

6.04

 

Payment of Taxes

  49
 

6.05

 

Preservation of Existence, Etc

  49
 

6.06

 

Maintenance of Properties

  49
 

6.07

 

Maintenance of Insurance

  49
 

6.08

 

Compliance with Laws

  49
 

6.09

 

Books and Records

  50
 

6.10

 

Inspection Rights

  50
 

6.11

 

Use of Proceeds

  50
 

6.12

 

Additional Subsidiaries

  50

ARTICLE VII.

 

NEGATIVE COVENANTS

 
50
 

7.01

 

Liens

 
50
 

7.02

 

Indebtedness

  51
 

7.03

 

Fundamental Changes

  52
 

7.04

 

Dispositions

  52
 

7.05

 

Restricted Payments

  53
 

7.06

 

Change in Nature of Business

  53
 

7.07

 

Transactions with Affiliates

  53
 

7.08

 

Burdensome Agreements

  54
 

7.09

 

Use of Proceeds

  54
 

7.10

 

Amendments to Subordinated Notes

  55

ARTICLE VIII.

 

EVENTS OF DEFAULT AND REMEDIES

 
55
 

8.01

 

Events of Default

 
55
 

8.02

 

Remedies Upon Event of Default

  56
 

8.03

 

Application of Funds

  57

ARTICLE IX.

 

ADMINISTRATIVE AGENT

 
58
 

9.01

 

Appointment and Authority

 
58
 

9.02

 

Rights as a Lender

  58
 

9.03

 

Exculpatory Provisions

  58
 

9.04

 

Reliance by Administrative Agent

  59
 

9.05

 

Delegation of Duties

  59
 

9.06

 

Resignation of Administrative Agent

  59

ii


Section
   
  Page
 

9.07

 

Non-Reliance on Administrative Agent and Other Lenders

  60
 

9.08

 

Administrative Agent May File Proofs of Claim

  60
 

9.09

 

Collateral and Guaranty Matters

  61
 

9.10

 

Secured Cash Management Agreements and Secured Hedge Agreements

  62

ARTICLE X.

 

MISCELLANEOUS

 
62
 

10.01

 

Amendments, Etc

 
62
 

10.02

 

Notices; Effectiveness; Electronic Communication

  63
 

10.03

 

No Waiver; Cumulative Remedies

  65
 

10.04

 

Expenses; Indemnity; Damage Waiver

  65
 

10.05

 

Payments Set Aside

  67
 

10.06

 

Successors and Assigns

  67
 

10.07

 

Treatment of Certain Information; Confidentiality

  70
 

10.08

 

Right of Setoff

  71
 

10.09

 

Interest Rate Limitation

  71
 

10.10

 

Counterparts; Integration; Effectiveness

  71
 

10.11

 

Survival of Representations and Warranties

  72
 

10.12

 

Severability

  72
 

10.13

 

Replacement of Lenders

  72
 

10.14

 

Governing Law; Jurisdiction; Etc

  73
 

10.15

 

Waiver of Jury Trial

  73
 

10.16

 

No Advisory or Fiduciary Responsibility

  74
 

10.17

 

USA PATRIOT Act Notice

  74
 

10.18

 

Judgment Currency

  74

SIGNATURES

     
S-1

iii


SCHEDULES

  2.01   Commitments and Pro Rata Shares
  5.05   Supplement to Interim Financial Statements
  5.12   Subsidiaries
  7.01   Existing Liens
  7.02   Existing Indebtedness
  10.02   Administrative Agent's Office; Certain Addresses for Notices

EXHIBITS

    Form of
 
A-1

 

Revolving Loan Notice
  A-2   Term Loan Interest Rate Selection Notice
  B-1   Term Loan Note
  B-2   Revolving Loan Note
  C   Compliance Certificate
  D   Assignment and Assumption
  E   Guaranty
  F   Opinion Matters
  G   Security Agreement

iv



CREDIT AGREEMENT

        This CREDIT AGREEMENT (" Agreement ") is entered into as of July 23, 2007, among PZENA INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the " Borrower "), each lender from time to time party hereto (collectively, the " Lenders " and individually, a " Lender "), and BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer.

        The Borrower has requested that the Lenders provide a revolving credit facility and a term loan facility, and the Lenders are willing to do so on the terms and conditions set forth herein.

        In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS

        1.01     Defined Terms.     As used in this Agreement, the following terms shall have the meanings set forth below:

        " Administrative Agent " means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

        " Administrative Agent's Office " means, with respect to any currency, the Administrative Agent's address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

        " Administrative Questionnaire " means an Administrative Questionnaire in a form supplied by the Administrative Agent.

        " Affiliate " means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

        " Aggregate Commitments " means, as at any date of determination thereof, the sum of (a) the Aggregate Revolving Credit Commitments at such date, plus (b) the Outstanding Amount with respect to the Term Loan Facility at such date.

        " Aggregate Revolving Credit Commitments " means, as at any date of determination thereof, the sum of all Revolving Credit Commitments of all Lenders at such date.

        " Agreement " means this Credit Agreement.

        " Alternative Currency " means each of Euro, Hong Kong Dollars, Sterling, Yen and each other currency (other than US Dollars) that is approved in accordance with Section 1.08 .

        " Alternative Currency Equivalent " means, at any time, with respect to any amount denominated in US Dollars, the equivalent amount thereof in the applicable Alternative Currency as reasonably determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with US Dollars.

        " Amendment No. 3 " means Amendment No. 3 to Credit Agreement and Limited Waiver and Consent dated October 28. 2008.

        " Applicable Rate " means a per annum rate equal to:

1


        " Applicable Time " means, with respect to any Letters of Credit and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

        " Approved Fund " means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

        " Assets Under Management " means all assets subject to a Management Agreement in which Loan Party, directly or indirectly, earns Management Fees. The amount of Assets Under Management for any day shall be determined as at the end of such day.

        " Assignee Group " means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

        " Assignment and Assumption " means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit D or any other form approved by the Administrative Agent.

        " Attributable Indebtedness " means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

        " Audited Financial Statements " means the audited consolidated balance sheet of the Borrower and its subsidiaries as determined in accordance with GAAP as of December 31, 2006, and the related consolidated statements of income or operations, shareholders' equity and cash flows for the fiscal year ended December 31, 2006 of the Borrower and its Subsidiaries as determined in accordance with GAAP, including the notes thereto.

        " Availability Period " means the period from and including the Closing Date to the earliest of (a) the Revolving Credit Maturity Date, (b) the date of termination of the Aggregate Revolving Credit Commitments pursuant to Section 2.06 , and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02 .

        " Bank of America " means Bank of America, N.A. and its successors.

        " Base Rate " means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1 / 2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its "prime rate." The "prime rate" is a rate set by Bank of America based upon various factors including Bank of America's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

        " Base Rate Loan " means a Loan (including a Segment) that bears interest based on the Base Rate.

        " Base Rate Revolving Loan " means a Revolving Loan that is a Base Rate Loan.

2


        " Borrower " has the meaning specified in the introductory paragraph hereto.

        " Borrower Materials " has the meaning specified in Section 6.02 .

        " Borrowing " means any of (a) the advance of the Term Loan pursuant to Section 2.01 or (b) a Revolving Borrowing, as the context may require.

        " Business Day " means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent's Office is located with respect to Obligations denominated in US Dollars and:

        " Capital Lease " means, as applied to any Person, any lease of any Property by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that person.

        " Capital Lease Obligations " shall mean as to any Person, the obligations of such Person to pay rent or other amounts under any Capital Lease, and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

        " Cash Collateral " and " Cash Collateralize " have the meanings specified in Section 2.04(g) .

        " Cash Management Agreement " means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

        " Cash Management Bank " means any Person that, (a) at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement, in each case in its capacity as a party to such Cash Management Agreement.

        " Change in Law " means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any guideline or directive (whether or not having the force of law) by any Governmental Authority.

3


        " Change of Voting Control " means an event or series of events by which:

        " Closing Date " means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 .

        " Code " means the Internal Revenue Code of 1986.

        " Commitment Fee " has the meaning specified in Section 2.09 .

        " Collateral " means all of the " Collateral " referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.

        " Collateral Documents " means, collectively, the Security Agreement (and any Security Joinder Agreement) and each of the other agreements, instruments or documents that creates, perfects or purports to create or perfect a Lien in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Obligations.

        " Compliance Certificate " means a certificate substantially in the form of Exhibit C .

        " Contractual Obligation " means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

        " Control " means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. " Controlling " and " Controlled " have meanings correlative thereto. A Person shall be deemed to be controlled by another Person if such other Person possesses, directly or indirectly, 10% or more of the voting power for the election of directors, managing members or the equivalent.

        " Credit Extension " means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

        " Debtor Relief Laws " means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

4


        " Default " means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

        " Default Rate " means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided , however , that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.

        " Defaulting Lender " means any Lender that (a) has failed to fund any portion of the Loans or participations in L/C Obligations required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute or unless such failure has been cured, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

        " Disposition " or " Dispose " means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person.

        " Distribution " means any dividend or distribution (whether in cash, securities or other Property) with respect to the Equity Interests of a Loan Party or any subsidiary.

        " Domestic Subsidiary " means any Subsidiary that is organized under the laws of any political subdivision of the United States.

        " Drawn Amount " has the meaning specified in Section 2.04(c)(i) .

        " Eligible Assignee " means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) , (v) and (vi) (subject to such consents, if any, as may be required under Section 10.06(b)(iii) ).

        " EMU " means the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.

        " EMU Legislation " means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

        " Equity Interests " means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

        " ERISA " means the Employee Retirement Income Security Act of 1974.

        " ERISA Affiliate " means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

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        " ERISA Event " means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

        " Euro " and " EUR " mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

        " Eurodollar Rate " means, for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (" BBA LIBOR "), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for US Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the "Eurodollar Rate" for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in US Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America's London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

        " Eurodollar Rate Loan " means a Loan (including a Segment) that bears interest at a rate based on the Eurodollar Rate. All Eurodollar Rate Loans shall be denominated in US Dollars.

        " Event of Default " has the meaning specified in Section 8.01 .

        " Excluded Subsidiary " means (a) any Subsidiary that is prohibited by applicable Law or a Governmental Authority from guaranteeing the Obligations and (b) any Subsidiary which requires consent from a Person (other than the Borrower or another Subsidiary, or any Lender which does grant such consent) in order to guarantee the Obligations.

        " Excluded Taxes " means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or in which it is deemed by such jurisdiction to be doing business (other than such determination resulting in whole or in part from its having executed, delivered or performed its obligations under, or enforced, this Agreement or any other Loan Document) or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 10.13 ), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is

6



attributable to such Foreign Lender's failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e) , except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 3.01(a) .

        " Facility Termination Date " means the date as of which all of the following shall have occurred: (a) the Aggregate Commitments have terminated, and (b) all Obligations have been paid in full (other than (x) contingent indemnification obligations and (y) obligations and liabilities under Cash Management Agreements and Hedge Agreements as to which arrangements reasonably satisfactory to the applicable Cash Management Bank or Hedge Bank have been made), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other arrangements with respect thereto satisfactory to the Administrative Agent and the L/C Issuer shall have been made).

        " Federal Funds Rate " means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

        " Foreign Lender " means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

        " FRB " means the Board of Governors of the Federal Reserve System of the United States.

        " Fund " means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

        " Funded Indebtedness " means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

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For purposes hereof, the amount of any direct obligation arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments shall be the maximum amount available to be drawn thereunder.

        " GAAP " means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, that are applicable to the circumstances as of the date of determination, consistently applied.

        " Governmental Authority " means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

        " Guarantee " means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable by another Person (the "primary obligor") in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term "Guarantee" as a verb has a corresponding meaning.

        " Guarantors " means, collectively, each Subsidiary of the Borrower party to or that becomes party to the Guaranty Agreement.

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        " Guaranty " means the Guaranty made by the Guarantors in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit E , as supplemented from time to time by the execution and delivery of a Guaranty Joinder Agreement pursuant to Section 6.12 , as from time to time amended, amended and restated, replaced, supplemented or otherwise modified.

        " Guaranty Joinder Agreement " means each Guaranty Joinder Agreement, substantially in the form thereof attached to the Guaranty, executed and delivered by a Guarantor to the Administrative Agent pursuant to Section 6.12 , as amended, supplemented or otherwise modified from time to time.

        " Hedge Agreement " means any Swap Contract permitted under Article VII that is entered into by and between any Loan Party and any Hedge Bank.

        " Hedge Bank " means any Person that, (a) at the time it enters into a Hedge Agreement, is a Lender or an Affiliate of a Lender or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Hedge Agreement, in each case in its capacity as a party to such Hedge Agreement.

        " Hong Kong Dollar " and " HK$ " mean lawful money of Hong Kong, China.

        " Impacted Lender " means any Lender (a) that has given notice to the Borrower, the Administrative Agent or any other Lender, or has otherwise announced, that such Lender believes it will become, or that fails to promptly provide reasonably satisfactory assurance, following inquiry, to the Borrower, the Administrative Agent and/or the L/C Issuer making such inquiry, that it will not become, a Defaulting Lender, (b) as to which the Administrative Agent or the L/C Issuer has a good faith belief that such Lender has defaulted in fulfilling its obligations under one or more other syndicated credit facilities or (c) with respect to which a Person that Controls such Lender (i) has been deemed insolvent or become the subject of a voluntary or involuntary case under the Bankruptcy Code or any other Debtor Relief Law, (ii) has a custodian, conservator, receiver or similar official appointed for it or any substantial part of its assets, (iii) is subject to a forced liquidation, merger, sale or other change of control supported in whole or in part by guaranties or other support of (including, without limitation, the nationalization or assumption of ownership or operating control by) the United States government or other Governmental Authority, (iv) makes a general assignment for the benefit of creditors or (v) is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over it to be, insolvent, bankrupt or deficient in meeting any capital adequacy or liquidity standard of any such Governmental Authority.

        " Indebtedness " means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

        " Indemnified Taxes " means Taxes other than Excluded Taxes.

        " Indemnitees " has the meaning specified in Section 10.04(b) .

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        " Information " has the meaning specified in Section 10.07 .

        " Interest Payment Date " means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable; provided , however , that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable.

        " Interest Period " means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Revolving Loan Notice or Term Loan Interest Rate Selection Notice or such other period that is twelve months or less requested by the Borrower and available to all the affected Lenders; provided that:

        " IP Rights " has the meaning specified in Section 5.17 .

        " IPO " means, collectively, (1) the organization of the Parent, (2) the sale of shares of Class A common stock of the Parent to the public for cash pursuant to and as contemplated by the Parent's registration statement on Form S-1 (No. 333-143660), (3) the Parent's use of the cash proceeds of such sale to acquire certain currently outstanding membership units of the Borrower as contemplated by such registration statement, and (4) the amendment and restatement of the operating agreement of the Borrower, such that, among other things, the Parent is appointed as the sole managing member of the Borrower.

        " IRS " means the United States Internal Revenue Service.

        " ISP " means, with respect to any Letter of Credit, the "International Standby Practices 1998" published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

        " Issuer Documents " means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.

        " Laws " means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

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        " L/C Advance " means, with respect to each Lender, such Lender's funding of its participation in any L/C Borrowing in accordance with its Pro Rata Revolving Share. All L/C Advances shall be denominated in US Dollars.

        " L/C Borrowing " means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Borrowing.

        " L/C Credit Extension " means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

        " L/C Issuer " means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.

        " L/C Obligations " means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Drawn Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding" in the amount so remaining available to be drawn.

        " Lender " has the meaning specified in the introductory paragraph hereto.

        " Lending Office " means, as to any Lender, the office or offices of such Lender described as such in such Lender's Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

        " Letter of Credit " means any standby letter of credit issued hereunder. Letters of Credit may be issued in US Dollars or in an Alternative Currency.

        " Letter of Credit Application " means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

        " Letter of Credit Expiration Date " means the day that is seven days prior to the Revolving Credit Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

        " Letter of Credit Fee " has the meaning specified in Section 2.04(i) .

        " Letter of Credit Sublimit " means an amount equal to US$5,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

        " Lien " means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

        " Loan " means an extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Loan or a Term Loan, including any Segment.

        " Loan Documents " means this Agreement, each Note, each Issuer Document, any Fee Letter, the Guaranty and each Collateral Document.

        " Loan Parties " means, collectively, the Borrower and each Guarantor.

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        " Management Agreement " means each management or other similar agreement among one or more Loan Parties and other Persons, wherein such Loan Parties agree to provide investment management or other similar services to such Persons.

        " Management Fees " means the investment management, performance and other similar fees earned by a Loan Party, directly or indirectly, under a Management Agreement.

        " Material Adverse Effect " means (a) a material adverse change in, or a material adverse effect upon, the business, assets, liabilities (actual or contingent), or financial condition of the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Lenders or the Administrative Agent under any Loan Document, or of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party; provided , however , in no event shall the non-recurring non-cash charge relating to the Borrower's units taken in the first quarter of 2007 constitute a Material Adverse Effect.

        " Multiemployer Plan " means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

        " New Product Investments " means expenditures on investments in new products.

        " Non-Consenting Lender " has the meaning specified in Section 10.01 .

        " Note " means, collectively, the Revolving Loan Notes and the Term Loan Notes.

        " Obligations " means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

        " Organization Documents " means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

        " Outstanding Amount " means (a) with respect to the Term Loan on any date, the aggregate outstanding principal amount thereof after giving effect to the Borrowing of the Term Loan on the Closing Date, and any prepayments or repayments of the Term Loan (or any Segment) occurring on such date, (b) with respect to Revolving Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any Revolving Borrowings and any prepayments or repayments of Revolving Loans occurring on such date; and (c) with respect to any L/C Obligations on any date, the US Dollar Equivalent of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Drawn Amounts.

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        " Overnight Rate " means, for any day, (a) with respect to any amount denominated in US Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent or the L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for such currency to major banks in such interbank market.

        " Parent " means Pzena Investment Management, Inc., which, simultaneously with the IPO, will own all of the class A membership units in the Borrower.

        " Participant " has the meaning specified in Section 10.06(d) .

        " Participating Member State " means each state so described in any EMU Legislation.

        " PBGC " means the Pension Benefit Guaranty Corporation.

        " Pension Plan " means any "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

        " Permitted Lien " means any Lien permitted by Section 7.01 .

        " Permitted Tax Distributions " has the meaning specified in Section 7.05(e) .

        " Person " means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

        " Plan " means any "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

        " Platform " has the meaning specified in Section 6.02 .

        " Presumed Tax Rate " means for a Loan Party or Subsidiary the highest combined Federal, and applicable state and local income tax rate applicable to such Loan Party or Subsidiary (taking into account the character of the income and after giving effect to the Federal income tax deduction for such state and local income taxes).

        " Pro Rata Revolving Share " means, with respect to each Revolving Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Revolving Credit Commitment of such Revolving Lender at such time and the denominator of which is the amount of the Aggregate Revolving Credit Commitments at such time; provided that if the Aggregate Revolving Credit Commitments have been terminated at such time, then the Pro Rata Revolving Share of each Revolving Lender shall be the Pro Rata Revolving Share of such Revolving Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to Section 10.06 . The initial Pro Rata Revolving Share of each Revolving Lender is set forth opposite the name of such Revolving Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Revolving Lender becomes a party hereto, as applicable.

        " Pro Rata Term Share " means, with respect to each Term Loan Lender at any time, the percentage (carried out to the ninth decimal place) of the principal amount of the Term Loan funded by such Term Loan Lender, and outstanding at such time, or the principal amount of the Term Loan assigned

13



to such Term Loan Lender, as applicable. The initial Pro Rata Term Share of each Term Loan Lender is set forth opposite the name of such Term Loan Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Term Loan Lender becomes a party hereto, as applicable.

        " Property " means any interest of any kind in any property or asset, whether real, personal or mixed, or tangible or intangible.

        " Public Lender " has the meaning specified in Section 6.02 .

        " Register " has the meaning specified in Section 10.06(c) .

        " Related Parties " means, with respect to any Person, such Person's Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person's Affiliates.

        " Reportable Event " means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

        " Request for Credit Extension " means (a) with respect to a Borrowing, conversion or continuation of Revolving Loans, a Revolving Loan Notice, (b) with respect to the initial advance of the Term Loan or a conversion or continuation of Segments, a Term Loan Interest Rate Selection Notice, and (c) with respect to an L/C Credit Extension, a Letter of Credit Application.

        " Required Lenders " means, as of any date of determination, Lenders having more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 , Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each Lender's risk participation and funded participation in L/C Obligations being deemed "held" by such Lender for purposes of this definition); provided that the Aggregate Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

        " Required Revolving Lenders " means, as of any date of determination, Revolving Lenders having more than 50% of the Aggregate Revolving Credit Commitments or, if the Revolving Credit Commitment of each Revolving Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions hereunder have been terminated pursuant to Section 8.02 , Revolving Lenders holding in the aggregate more than 50% of the Outstanding Amount under the Revolving Credit Facility (with the aggregate amount of each Revolving Lender's risk participation and funded participation in L/C Obligations being deemed "held" by such Revolving Lender for purposes of this definition); provided that the Revolving Credit Commitment of, and the portion of the Outstanding Amount (including risk participations in Letters of Credit) under the Revolving Credit Facility held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.

        " Required Term Loan Lenders " means, as of any date of determination, Term Loan Lenders having more than 50% of the Outstanding Amount of the Term Loan; provided that the Outstanding Amount of the Term Loan held or deemed held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term Loan Lenders.

        " Responsible Officer " means the chief executive officer, any president that is also a member of the executive management committee, chief financial officer, director, finance & accounting or treasurer of a Loan Party or the Parent, as applicable. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party or the Parent shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party or the Parent and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party or the Parent.

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        " Restricted Payment " means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Borrower's stockholders, partners or members (or the equivalent Person thereof).

        " Revaluation Date " means, with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an Alternative Currency, and (iv) such additional dates as the Administrative Agent or the L/C Issuer shall determine.

        " Revolving Borrowing " means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period, made by each of the Revolving Lenders pursuant to Section 2.02 .

        " Revolving Credit Commitment " means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.02 , and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

        " Revolving Credit Facility " means the facility described in Sections 2.02 and 2.04 providing for Revolving Loans and Letters of Credit to or for the benefit of the Borrower by the Revolving Lenders and L/C Issuer, as the case may be, in the maximum aggregate principal amount at any time outstanding of US$1,815,043, as adjusted from time to time pursuant to the terms of this Agreement.

        " Revolving Credit Maturity Date " means (a) July 23, 2011, (b) such earlier date upon which the Aggregate Revolving Credit Commitments have been terminated in full and the Outstanding Amounts under the Revolving Credit Facility, including all accrued and unpaid interest, are paid in full in accordance with the terms hereof or (c) such earlier date on which Letter of Credit No. 68020638 (or a replacement thereof) issued by the L/C Issuer for the benefit of SL Green Realty (or any subsequent landlord) is cancelled, terminated or otherwise not renewed or extended by the Borrower (other than in connection with a replacement thereof).

        " Revolving Lender " means each Lender that has a Revolving Credit Commitment or, following termination of the Revolving Credit Commitments, has Revolving Loans outstanding or participations in an outstanding Letter of Credit.

        " Revolving Loan " means a Base Rate Loan or a Eurodollar Rate Loan made to the Borrower by a Revolving Lender in accordance with its Pro Rata Revolving Share pursuant to Section 2.02 , except as otherwise provided herein.

        " Revolving Loan Note " means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Revolving Loans made by such Revolving Lender, substantially in the form of Exhibit B-2 .

        " Revolving Loan Notice " means a notice of (a) a Revolving Borrowing, (b) a conversion of Revolving Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.03(a) , which, if in writing, shall be substantially in the form of Exhibit A-1 .

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        " Same Day Funds " means (a) with respect to disbursements and payments in US Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.

        " SEC " means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

        " Secured Cash Management Agreement " means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank.

        " Secured Hedge Agreement " means any interest rate Swap Contract permitted under Article VII that is entered into by and between any Loan Party and any Hedge Bank.

        " Secured Parties " means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Cash Management Banks, the Hedge Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05 , and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.

        " Securitization Transaction " means, with respect to any Person, any financing transaction or series of financing transactions (including a factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.

        " Security Agreement " means the Security Agreement dated October 28, 2008, executed by the Borrower and the Guarantors in favor of the Administrative Agent for the ratable benefit of itself and the Secured Parties, substantially in the form of Exhibit G .

        " Security Joinder Agreement " means each Security Joinder Agreement, substantially in the form thereof attached to the Security Agreement, executed and delivered by a Person pursuant to Section 6.12 or otherwise.

        " Segment " means a portion of any Term Loan (or all thereof) with respect to which a particular interest rate is (or is proposed to be) applicable.

        " Specified Dividend " has the meaning specified in Section 6.11 .

        " Spot Rate " for a currency means the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.

        " Sterling " and " £ " mean the lawful currency of the United Kingdom.

        " Subsidiary " of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially

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owned by such Person; provided , however , that notwithstanding the foregoing, no Person which is an investment fund shall be treated as a Subsidiary for purposes of this Agreement. Unless otherwise specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower.

        " Subordinated Notes " means the Senior Subordinated Notes dated October 28, 2008, in an aggregate amount equal to not less than US$16,000,000, on terms and conditions (including subordination terms) reasonably acceptable to the Administrative Agent.

        " Swap Contract " means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a " Master Agreement "), including any such obligations or liabilities under any Master Agreement.

        " Swap Termination Value " means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

        " Synthetic Lease " means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement is considered borrowed money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear on a balance sheet under GAAP.

        " Synthetic Lease Obligation " means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

        " TARGET Day " means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (" TARGET ") payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

        " Tax Receivable Agreement " means a Tax Receivable Agreement to be entered into in connection with the IPO among the Borrower and certain of its members as contemplated by the Parent's registration statement on Form S-1 (No. 333-143660).

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        " Taxes " means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

        " Term Loan " means the loans made pursuant to the Term Loan Facility in accordance with Section 2.01 .

        " Term Loan Facility " means the facility described in Section 2.01 providing for an advance of the Term Loan to the Borrower by the Term Loan Lenders in the original principal amount of US$60,000,000, subject to adjustments as herein provided.

        " Term Loan Interest Rate Selection Notice " means the written notice delivered by a Responsible Officer of the Borrower in connection with the election of any Interest Period for any Eurodollar Rate Segment or the conversion of any Eurodollar Rate Segment into a Base Rate Segment or the conversion of any Base Rate Segment into a Eurodollar Rate Segment, which, if in writing, shall be substantially in the form of Exhibit A-2 .

        " Term Loan Lender " means each Lender that has a portion of the Term Loan outstanding under the Term Loan Facility.

        " Term Loan Maturity Date " means (a) July 23, 2011, or (b) such earlier date upon which the Outstanding Amounts under the Term Loan Facility, including all accrued and unpaid interest, are paid in full in accordance with the terms hereof.

        " Term Loan Note " means a promissory note made by the Borrower in favor of a Term Loan Lender evidencing the portion of the Term Loan made by such Term Loan Lender, substantially in the form of Exhibit B-1 .

        " Total Outstandings " means the aggregate Outstanding Amount of all Loans and all L/C Obligations.

        " Total Revolving Outstandings " means the aggregate Outstanding Amount of all Revolving Loans and L/C Obligations.

        " Type " means, with respect to a Revolving Loan or a Segment, its character as a Base Rate Loan or a Eurodollar Rate Loan.

        " UCC " means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, " UCC " means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

        " Unfunded Pension Liability " means the excess of a Pension Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan's assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

        " United States " and " U.S. " mean the United States of America.

        " US Dollar " and " US$ " mean lawful money of the United States.

        " US Dollar Equivalent " means, at any time, (a) with respect to any amount denominated in US Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in US Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of US Dollars with such Alternative Currency.

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        " Yen " and " ¥ " mean the lawful currency of Japan.

        1.02     Other Interpretive Provisions .    With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

        1.03     Accounting Terms .    (a)     Generally .    All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

        (b)    Changes in GAAP .    If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that , until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

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        (c)    Consolidation of Variable Interest Entities .    All references herein to consolidated financial statements of the Borrower and its Subsidiaries or to the determination of any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to FASB Interpretation No. 46—Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein.

        (d)    Financial Statements .    For the avoidance of doubt, all financial statements referred to in Section 5.05 and to be prepared and delivered pursuant to Section 6.01 shall include certain investment funds on a consolidated basis with the Parent or Borrower and their respective subsidiaries, as applicable, notwithstanding the definition of "Subsidiary" or any other terms herein to the contrary.

        1.04     Rounding .    Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

        1.05     Times of Day .    Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

        1.06     Letter of Credit Amounts .    Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the US Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the US Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

        1.07     Exchange Rates; Currency Equivalents.     (a)    The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating the US Dollar Equivalent amounts of L/C Credit Extensions denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or except as otherwise provided herein, the applicable amount of any currency (other than US Dollars) for purposes of the Loan Documents shall be such US Dollar Equivalent amount as so determined by the Administrative Agent or the L/C Issuer, as applicable.

        (b)   Wherever in this Agreement in connection with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in US Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such US Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.

        1.08     Additional Alternative Currencies .    (a)    The Borrower may from time to time request that Letters of Credit be issued in a currency other than those specifically listed in the definition of "Alternative Currency;" provided that such requested currency is a lawful currency (other than US Dollars) that is readily available and freely transferable and convertible into US Dollars. In the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the L/C Issuer.

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        (b)   Any such request shall be made to the Administrative Agent not later than 11:00 a.m., twenty (20) Business Days prior to the date of the desired L/C Credit Extension (or such other time or date as may be agreed by the Administrative Agent and the L/C Issuer, in their sole discretion). In the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer thereof. The L/C Issuer shall notify the Administrative Agent, not later than 11:00 a.m., ten (10) Business Days after receipt of such request whether it consents, in its sole discretion, to the issuance of Letters of Credit in such requested currency.

        (c)   Any failure by the L/C Issuer to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by the L/C Issuer to permit Letters of Credit to be issued in such requested currency. If the Administrative Agent and the L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.08 , the Administrative Agent shall promptly so notify the Borrower.

        1.09     Change of Currency.     (a)    Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency.

        (b)   Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

        (c)   Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.

ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS

        2.01     Term Loan.     

        (a)   Subject to the terms and conditions of this Agreement, each Term Loan Lender severally agrees to make an advance of its Pro Rata Term Share of the Term Loan in US Dollars to the Borrower on the Closing Date, and from the Closing Date to the Term Loan Maturity Date, convert and continue Segments from time to time in accordance with the terms hereof. The principal amount of each Segment of the Term Loan outstanding hereunder from time to time shall bear interest and the Term Loan shall be repayable as herein provided. No amount of the Term Loan repaid or prepaid by the Borrower may be reborrowed hereunder, and no subsequent advance under the Term Loan Facility shall be allowed after the initial such advance of the Term Loan on the Closing Date. Segments of the Term Loan may be Base Rate Segments or Eurodollar Rate Segments at the Borrower's election, as provided herein.

        (b)   Not later than 1:00 p.m. on the Closing Date, each Term Loan Lender shall, pursuant to the terms and subject to the conditions of this Agreement, make the amount of its Pro Rata Term Share of

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the Term Loan available by wire transfer to the Administrative Agent. Such wire transfer shall be directed to the Administrative Agent at the Administrative Agent's Office and shall be in the form of same day funds in US Dollars. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, including without limitation the satisfaction of all applicable conditions in Sections 4.01 and 4.02 , be made available to the Borrower by delivery of the proceeds thereof as shall be directed by a Responsible Officer of the Borrower and reasonably acceptable to the Administrative Agent. The initial Borrowing of the Term Loan may be a Eurodollar Rate Segment, a Base Rate Segment, or both; provided that if the Borrower desires that any portion of the initial Borrowing of the Term Loan is advanced as a Eurodollar Rate Segment, the Administrative Agent shall make such Borrowing as a Eurodollar Rate Segment only if, not later than three Business Days prior to the date that is then anticipated to be the Closing Date, the Administrative Agent has received from the Borrower a Term Loan Interest Rate Selection Notice with respect thereto, together with the Borrower's written acknowledgement in form and substance satisfactory to the Administrative Agent that the provisions of Section 3.05 hereof shall apply to any failure by the Borrower to borrow on the date set forth in such Term Loan Interest Rate Selection Notice any or all of the amounts specified in such Term Loan Interest Rate Selection Notice.

        2.02     Revolving Loans .    Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make, convert and continue Revolving Loans in US Dollars to the Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Revolving Lender's Revolving Credit Commitment; provided , however , that after giving effect to any Revolving Borrowing, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Credit Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such Lender's Pro Rata Revolving Share of the Outstanding Amount of all L/C Obligations shall not exceed such Lender's Revolving Credit Commitment. Within the limits of each Lender's Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.02 , prepay under Section 2.05 , and reborrow under this Section 2.02 . Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

        2.03     Borrowings, Conversions and Continuations of Loans.     

        (a)   Each Revolving Borrowing, each conversion of Revolving Loans or Segments of the Term Loan from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than noon (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans; provided , however , that if the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of " Interest Period ", the applicable notice must be received by the Administrative Agent not later than noon four Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Revolving Lenders or Term Loan Lenders, as applicable, of such request and determine whether the requested Interest Period is available to all of them. Not later than 11:00 a.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders. Each telephonic notice by the Borrower pursuant to this Section 2.03(a) must be confirmed promptly by delivery to the Administrative Agent of a written Revolving Loan Notice (as to Revolving Borrowings) or Term Loan Interest Rate Selection Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of US$500,000

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or a whole multiple of US$250,000 in excess thereof. Except as provided in Sections 2.04(c) and 2.05(b) , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of US$250,000 or a whole multiple of US$50,000 in excess thereof.

        Each Revolving Loan Notice and Term Loan Interest Rate Selection Notice (whether telephonic or written) shall specify, as applicable, (i) whether the Borrower is requesting a Revolving Borrowing, a conversion of Revolving Loans from one Type to the other, a conversion of Term Loan Segments from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Revolving Loans to be borrowed, or the principal amount of Revolving Loans or Term Loan Segments to be converted or continued, (iv) the Type of Revolving Loans to be borrowed or the Type of Revolving Loans or Term Loan Segments to which existing Revolving Loans or Term Loan Segments are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. Revolving Loans may not be converted to Term Loan Segments, and Term Loan Segments may not be converted to Revolving Loans. Each written Revolving Loan Notice shall be substantially in the form of Exhibit A-1 attached hereto, and each written Term Loan Interest Rate Selection Notice shall be substantially in the form of Exhibit A-2 attached hereto. If the Borrower fails to specify a Type of Revolving Loan in a Revolving Loan Notice or a Type of Term Loan Segment in a Term Loan Interest Rate Selection Notice, then the applicable Loans shall be made as Base Rate Loans. If the Borrower fails to give a timely notice requesting a continuation of Eurodollar Rate Loans, then the applicable Eurodollar Rate Loans shall be continued as Eurodollar Rate Loans with an Interest Period of one month. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Revolving Loan Notice or Term Loan Interest Rate Selection Notice, but fails to specify an Interest Period, it will also be deemed to have specified an Interest Period of one month.

        (b)   Following receipt of a Revolving Loan Notice, the Administrative Agent shall promptly notify each Revolving Lender of its Pro Rata Revolving Share of the applicable Revolving Loans, and if no timely notice of a continuation of a Eurodollar Rate Loan is provided by the Borrower, the Administrative Agent shall notify each Revolving Lender of the details of any automatic continuation of Eurodollar Rate Loans described in the preceding subsection. Following receipt of a Term Loan Interest Rate Selection Notice, the Administrative Agent shall promptly notify each Term Loan Lender of the details of any conversion or continuation, and if no timely notice of a continuation of a Eurodollar Rate Loan is provided by the Borrower, the Administrative Agent shall notify each Term Loan Lender of the details of any automatic continuation of Eurodollar Rate Loans described in the preceding subsection. In the case of a Revolving Borrowing, each applicable Lender shall make the amount of its Revolving Loan available to the Administrative Agent in immediately available funds at the Administrative Agent's Office not later than 1:00 p.m. on the Business Day specified in the applicable Revolving Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01 ), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided , however , that if, on the date the Revolving Loan Notice with respect to such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first , shall be applied to the payment in full of any such L/C Borrowings, and second , shall be made available to the Borrower as provided above.

        (c)   Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without

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the Required Revolving Lenders or the Required Term Loan Lenders, as applicable, having agreed to such treatment.

        (d)   The Administrative Agent shall promptly notify the Borrower and the applicable Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America's "prime rate" used in determining the Base Rate promptly following the public announcement of such change.

        (e)   After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not at any time be more than (a) seven Interest Periods in effect with respect to the Term Loan and (b) seven Interest Periods in effect with respect to the Revolving Credit Facility.

        2.04     Letters of Credit.     

        (a)     The Letter of Credit Commitment.     

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        (b)    Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit .

25


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        (c)     Drawings and Reimbursements; Funding of Participations.     

27


        (d)     Repayment of Participations.     

        (e)    Obligations Absolute .    The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

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        The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower's instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.

        (f)     Role of L/C Issuer.     Each Revolving Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Revolving Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude the Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.04(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the L/C Issuer's bad faith, willful misconduct or gross negligence or the L/C Issuer's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign

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a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

        (g)     Cash Collateral.     

        (h)     Applicability of ISP.     Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit.

        (i)     Letter of Credit Fees.     The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Pro Rata Revolving Share a Letter of Credit fee (the " Letter of Credit Fee ") for each Letter of Credit equal to the Applicable Rate times the US Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . Letter of Credit Fees shall be (i) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be

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drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Revolving Lenders, while any Event of Default described in Section 8.01(a) or 8.01(f) exists, all Letter of Credit Fees shall accrue at the Default Rate.

        (j)     Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.     At all times at which there is more than one Lender, the Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, at the rate per annum of one eighth of one percent (0.125), computed on the US Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit and on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . In addition, the Borrower shall pay directly to the L/C Issuer for its own account, in US Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

        (k)     Conflict with Issuer Documents.     In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

        2.05     Prepayments.     

        (a)   The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under either the Revolving Credit Facility or the Term Loan Facility or a combination thereof in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than noon (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of US$500,000 or a whole multiple of US$250,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of US$250,000 or a whole multiple of US$50,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be repaid, the Interest Period(s) of such Loans. Prepayments of the Term Loan shall be applied to the remaining installments of principal in the direct order of maturity. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender's ratable share of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 . Each such prepayment shall be applied to the Loans of the Lenders in accordance with their Pro Rata Revolving Shares and Pro Rata Term Shares, as applicable.

        (b)   If for any reason the Total Revolving Outstandings at any time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided , however , that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b) unless after the

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prepayment in full of the Revolving Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral or other satisfactory arrangements be provided in order to protect against the results of further exchange rate fluctuations. At such time Cash Collateral is no longer required by this Section 2.05(b) , the Administrative Agent shall release such Cash Collateral.

        (c)   [Reserved.]

        (d)   (i) On September 24, 2008, the Borrower shall prepay the Term Loan in a principal amount equal to (A) US$3,000,000, if Assets Under Management at the end of the preceding Business Day are greater than US$18,000,000,000, or (B) US$5,000,000, if Assets Under Management at the end of the preceding Business Day are less than or equal to US$18,000,000,000, and (ii) on the 23rd day of each January, April, July and October thereafter, the Borrower shall prepay the Term Loan in a principal amount equal to US$2,000,000.

        2.06     Termination or Reduction of Commitments.     The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Credit Commitments, or from time to time permanently reduce the Aggregate Revolving Credit Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than noon five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of US$2,500,000 or any whole multiple of US$1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce the Aggregate Revolving Credit Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving Credit Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Revolving Credit Commitments or the Letter of Credit Sublimit exceeds the amount of the Aggregate Revolving Credit Commitments, such Sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the Revolving Lenders of any such notice of termination or reduction of the Aggregate Revolving Credit Commitments. Any reduction of the Aggregate Revolving Credit Commitments shall be applied to the Revolving Credit Commitment of each Revolving Lender according to its Pro Rata Revolving Share. All fees accrued until the effective date of any termination of the Aggregate Revolving Credit Commitments shall be paid on the effective date of such termination.

        2.07     Repayment of Loans.     

        (a)   The Borrower shall repay to the Revolving Lenders on the Revolving Credit Maturity Date the aggregate principal amount of Revolving Loans outstanding on such date.

        (b)   The Borrower shall repay to the Term Loan Lenders on the Term Loan Maturity Date the aggregate principal amount of the Term Loan outstanding on such date.

        2.08     Interest.     

        (a)   Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

        (b)   (i)    If any amount (including principal of any Loan, interest on any Loan, or any fees due hereunder) is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, or while any Event of Default described in Section 8.01(f) exists, the principal amount of all outstanding Obligations shall thereafter bear interest at a fluctuating

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interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

        (c)   Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

        2.09     Fees.     In addition to certain fees described in subsections (i) and (j) of Section 2.04 :

        (a)     Commitment Fee.     The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Pro Rata Revolving Share, a commitment fee in US Dollars (the " Commitment Fee ") equal to the Applicable Rate times the actual daily amount by which the Aggregate Revolving Credit Commitments exceed the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee shall be calculated quarterly in arrears.

        2.10     Computation of Interest and Fees.     All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America's "prime rate" and all computations of the Commitment Fee shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year), or, in the case of interest in respect of Letters of Credit denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a) , bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

        2.11     Evidence of Debt.     

        (a)   The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender's Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

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        (b)   In addition to the accounts and records referred to in subsection (a), each Revolving Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Revolving Lender of participations in Letters of Credit. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

        2.12     Payments Generally; Administrative Agent's Clawback.     

        (a)     General.     All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent's Office in US Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its ratable share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

        (b)  (i)     Funding by Lenders; Presumption by Administrative Agent.     Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender's share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.03 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.03 ) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender's Revolving Loan or Pro Rata Term Share of the Term Loan, as applicable included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

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        A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

        (c)     Failure to Satisfy Conditions Precedent.     If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II , and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

        (d)     Obligations of Lenders Several.     The obligations of the Lenders hereunder, as applicable, to make Revolving Loans, to fund their respective Pro Rata Term Share of the Term Loan, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Revolving Loan, to fund their respective Pro Rata Term Share of the Term Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Revolving Loan, to fund its Pro Rata Term Share of the Term Loan, to purchase its participation or to make its payment under Section 10.04(c).

        (e)     Funding Source.     Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

        2.13     Sharing of Payments by Lenders.     

        (a)     Sharing of Payments by Revolving Lenders.     If any Revolving Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Revolving Loans made by it or the participations in L/C Obligations held by it resulting in such Revolving Lender's receiving payment of a proportion of the aggregate amount of such Revolving Loans or participations and accrued interest thereon greater than its Pro Rata Revolving Share thereof as provided herein, then the Revolving Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Revolving Loans and subparticipations in L/C Obligations of the other Revolving Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Revolving Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and other amounts owing them, provided that:

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        (b)     Sharing of Payments by Term Loan Lenders.     If any Term Loan Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any portion of the Term Loan made by it resulting in such Term Loan Lender's receiving payment of a proportion of the aggregate amount of such portion of the Term Loan and accrued interest thereon greater than its Pro Rata Term Share thereof as provided herein, then the Term Loan Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the portions of the Term Loan of the other Term Loan Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Term Loan Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective portion of the Term Loan and other amounts owing them, provided that:

        (c)   The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Revolving Lender or Term Loan Lender, as the case may be, acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.


ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY

        3.01     Taxes.     

        (a)     Payments Free of Taxes.     Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes, provided that if the Borrower shall be required by applicable law to deduct any Indemnified Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

        (b)     [Reserved.]     

        (c)     Indemnification by the Borrower.     The Borrower shall indemnify the Administrative Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.

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        (d)     Evidence of Payments.     As soon as practicable after any payment of Indemnified Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

        (e)     Status of Lenders.     Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.

        Without limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

        (f)     Treatment of Certain Refunds.     If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is required to repay such

37


refund to such Governmental Authority. This subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.

        3.02     Illegality.     If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, US Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

        3.03     Inability to Determine Rates.     

        (a)   If the Required Revolving Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) US Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Revolving Lenders of funding such Revolving Loan, the Administrative Agent will promptly so notify the Borrower and each Revolving Lender. Thereafter, the obligation of the Revolving Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Revolving Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Revolving Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Revolving Borrowing of Base Rate Loans in the amount specified therein.

        (b)   If the Required Term Loan Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) US Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Term Loan Lenders of funding such Term Loan Segments, the Administrative Agent will promptly so notify the Borrower and each Term Loan Lender. Thereafter, the obligation of the Term Loan Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Term Loan Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans under the Term Loan Facility or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans under the Term Loan Facility in the amount specified therein.

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        3.04     Increased Costs; Reserves on Eurodollar Rate Loans.     

        (a)     Increased Costs Generally.     If any Change in Law shall:

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.

        (b)     Capital Requirements.     If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender's or the L/C Issuer's holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender's or the L/C Issuer's capital or on the capital of such Lender's or the L/C Issuer's holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender's or the L/C Issuer's holding company could have achieved but for such Change in Law (taking into consideration such Lender's or the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender's or the L/C Issuer's holding company for any such reduction suffered.

        (c)     Certificates for Reimbursement.     A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.

        (d)     Delay in Requests.     Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender's or the L/C Issuer's right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender's or the L/C Issuer's intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).

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        (e)     Reserves on Eurodollar Rate Loans.     The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as "Eurocurrency liabilities"), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least 10 days' prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10 days from receipt of such notice.

        3.05     Compensation for Losses.     Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

        (a)   any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

        (b)   any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or

        (c)   any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13 ;

including any foreign exchange loss and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from performance of any foreign exchange contract. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

        For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.

        3.06     Mitigation Obligations; Replacement of Lenders.     

        (a)     Designation of a Different Lending Office.     If any Lender requests compensation under Section 3.04, or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

        (b)     Replacement of Lenders.     If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for

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the account of any Lender pursuant to Section 3.01, the Borrower may replace such Lender in accordance with Section 10.13.

        3.07     Survival.     All of the Borrower's obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.


ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

        4.01     Conditions of Initial Credit Extension.     The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:

        (a)   The Administrative Agent's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:

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        (b)   Any expenses required to be reimbursed on or before the Closing Date shall have been paid.

        (c)   Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).

        (d)   The Closing Date shall have occurred on or before September 30, 2007.

        Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

        4.02     Conditions to all Credit Extensions.     The obligation of each Lender to honor any Request for Credit Extension (other than a Revolving Loan Notice or a Term Loan Interest Rate Selection Notice requesting only a conversion of the applicable Loans or Segments of one Type to the other Type, or a continuation of Eurodollar Rate Loans or Eurodollar Rate Segments, as applicable) is subject to the following conditions precedent:

        (a)   The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.

        (b)   No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.

        (c)   The Administrative Agent and, if applicable, the L/C Issuer shall have received a Request for Credit Extension in accordance with the requirements hereof.

        (d)   In the case of an L/C Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Administrative Agent or the L/C Issuer would make it impracticable for such L/C Credit Extension to be denominated in the relevant Alternative Currency.

        Each Request for Credit Extension (other than a Revolving Loan Notice or a Term Loan Interest Rate Selection Notice requesting only a conversion of Revolving Loans or Segments, as applicable, to the other Type or a continuation of Eurodollar Rate Loans or Eurodollar Rate Segments, as applicable) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and  (b) have been satisfied on and as of the date of the applicable Credit Extension.

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ARTICLE V.
REPRESENTATIONS AND WARRANTIES

        The Borrower represents and warrants to the Administrative Agent and the Lenders that:

        5.01     Existence, Qualification and Power.     Each Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

        5.02     Authorization; No Contravention.     The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person's Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law; except in each case referred to in clause (b) and clause (c), as could not reasonably be expected to have a Material Adverse Effect.

        5.03     Governmental Authorization; Other Consents.     No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document.

        5.04     Binding Effect.     This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms subject to and as limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the rights and remedies of creditors and by equitable principles relating to enforcement to the extent applicable.

        5.05     Financial Statements; No Material Adverse Effect.     

        (a)   The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial condition of the Borrower and its subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.

        (b)   The unaudited consolidated balance sheet of the Borrower and its subsidiaries dated March 31, 2007, and the related consolidated and consolidating (without including investment funds) statements of income or operations, shareholders' equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Borrower and its subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the

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absence of footnotes and to normal year-end audit adjustments. Schedule 5.05 sets forth all material indebtedness and other liabilities, direct or contingent, of the Borrower and its consolidated subsidiaries as of the date of such financial statements, including liabilities for taxes, material commitments and Indebtedness which are not set forth in such financial statements.

        (c)   Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

        5.06     Litigation.     There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) which has a reasonable possibility of being adversely determined and if adversely determined could reasonably be expected to have a Material Adverse Effect.

        5.07     No Default.     Neither any Loan Party nor any Subsidiary thereof is in default under or with respect to any Contractual Obligation that could reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

        5.08     Ownership of Property; Liens.     Each of the Borrower and each Subsidiary has good title to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.

        5.09     Insurance.     The properties of the Borrower and its Subsidiaries are adequately insured with insurance companies that are not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks, as the Loan Parties believe are adequate.

        5.10     Taxes.     The Borrower and its Subsidiaries have filed all material Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect. Other than the Tax Receivable Agreement, neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.

        5.11     ERISA Compliance.     

        (a)   Except for non-compliance which could not reasonably be expected to have a Material Adverse Effect, each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification. The Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.

        (b)   There are no pending or, to the best knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.

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        (c)   (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability in excess of US$10,000,000; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.

        5.12     Subsidiaries.     The Borrower has no Subsidiaries other than those specifically disclosed in Schedule 5.12.

        5.13     Margin Regulations; Investment Company Act.     

        (a)   The Borrower will not use the proceeds of any Credit Extension to purchase or carry margin stock (within the meaning of Regulation U issued by the FRB).

        (b)   None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is required to be registered as an "investment company" under the Investment Company Act of 1940.

        5.14     Disclosure.     The Borrower has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (in writing) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

        5.15     Compliance with Laws.     Each Loan Party and each Subsidiary thereof is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

        5.16     Taxpayer Identification Number.     The Borrower's true and correct U.S. taxpayer identification number is set forth on Schedule 10.02.

        5.17     Intellectual Property; Licenses, Etc.     Except for such failure to own or possess the legal title to use that could not reasonably be expected to have Material Adverse Effect, the Borrower and its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, " IP Rights ") that are necessary to the operation of their respective businesses, without conflict with the rights of any other Person. Except for such claims and infringements that could not reasonably be expected to have a Material Adverse Effect, to the best knowledge of the Borrower, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any rights held by any other Person. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

        5.18     Security Interest.     The Liens and security interests granted to the Administrative Agent (for the benefit of the Secured Parties) are valid first priority Liens and security interests in the Collateral (subject only to the Permitted Liens), and each has been perfected in accordance with the requirements of the UCC.

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ARTICLE VI.
AFFIRMATIVE COVENANTS

        So long as any Revolving Lender shall have any Revolving Credit Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01 , 6.02 , and 6.03 ) cause each Subsidiary to:

        6.01     Financial Statements.     Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:

        (a)   prior to effectiveness of the IPO,

        (b)   following effectiveness of the IPO,

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        (c)   As to any information contained in materials furnished pursuant to Section 6.02(d) , the Borrower shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.

        6.02     Certificates; Other Information.     Deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:

        (a)   concurrently with the delivery of the financial statements referred to in Sections 6.01(a)(i) and 6.01(b)(i) , a certificate of its independent certified public accounts certifying such financial statements;

        (b)   concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended June 30, 2007), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower and notice of any material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary;

        (c)   following effectiveness of the IPO, promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Parent, and copies of all annual, regular, periodic and special reports and registration statements

47



which the Parent may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto; and

        (d)   promptly, and in any event within five Business Days after receipt thereof by any Loan Party, the Parent or any subsidiary of any thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any material investigation or possible material investigation or other material inquiry by such agency regarding financial or other operational results of any Loan Party, the Parent or any subsidiary of any thereof; and

        (e)   promptly, such additional information regarding the business, financial or corporate affairs of the Borrower, the Parent or any subsidiary of either thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.

        Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower or the Parent posts such documents, or provides a link thereto on the Borrower's or the Parent's website on the Internet at the website address listed on Schedule 10.02 ; or (ii) on which such documents are posted on the Borrower's or the Parent's behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower or the Parent, as applicable, shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower or the Parent, as applicable, to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower or the Parent, as applicable, shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions ( i.e. , soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower or the Parent with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

        The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, " Borrower Materials ") by posting the Borrower Materials on IntraLinks or another similar electronic system (the " Platform ") and (b) certain of the Lenders (each, a " Public Lender ") may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons' securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall appear prominently on the first page thereof; (x) by marking Borrower Materials "PUBLIC", the Borrower shall be deemed to have authorized the Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws ( provided , however , that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07 ); (y) all Borrower Materials marked "PUBLIC" are permitted to be made available through a portion of the Platform designated "Public

48



Investor"; and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked "PUBLIC" as being suitable only for posting on a portion of the Platform not designated "Public Investor".

        6.03     Notices.     Promptly notify the Administrative Agent and each Lender:

        (a)   of the occurrence of any Default;

        (b)   of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Subsidiary;

        (c)   of the occurrence of any ERISA Event; and

        (d)   [Reserved.]

        Each notice pursuant to Section 6.03(a) , (b) or (c) shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

        6.04     Payment of Taxes.     Pay and discharge as the same shall become due and payable, all its material tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Subsidiary.

        6.05     Preservation of Existence, Etc.     (a) Preserve, renew and maintain in full force and effect its legal existence and good standing (except to the extent the failure to maintain good standing could not reasonably be expected to have a Material Adverse Effect) under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.03 or 7.04 ; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

        6.06     Maintenance of Properties.     (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

        6.07     Maintenance of Insurance.     Maintain adequate insurance with insurance companies not Affiliates of the Borrower, of such types and in such amounts as Borrower believes to be adequate and providing for not less than 30 days' (or, in the case of non-payment, 10 days') prior notice to the Administrative Agent of termination, lapse or cancellation of such insurance.

        6.08     Compliance with Laws.     Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being

49



contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

        6.09     Books and Records.     (a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may be.

        6.10     Inspection Rights.     Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its Properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants (and the Loan Parties shall be afforded the opportunity to participate in any discussions with such directors, officers, and independent public accountants), at such reasonable times during normal business hours but not more frequently than twice each fiscal year, upon reasonable advance notice to the Borrower; provided that absent an Event of Default the Borrower shall not be required to pay the expenses related thereto more frequently than once each fiscal year; and provided further that during the existence of an Event of Default the Administrative Agent (or any of its representatives) may do any of the foregoing at the expense of the Borrower at any time during normal business hours, without advance notice and as often as may be reasonably desired.

        6.11     Use of Proceeds.     Use the proceeds of (i) the Revolving Credit Facility for general corporate purposes not in contravention of any Law or of any Loan Document and (ii) the Term Loan Facility to make a cash dividend to the members of the Borrower on or after the Closing Date (the " Specified Dividend ").

        6.12     Additional Subsidiaries.     Notify the Administrative Agent at the time that any Person becomes a Domestic Subsidiary, and promptly thereafter (and in any event within 30 days), cause such Person (other than Excluded Subsidiaries) to (a)(i) become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty, a Guaranty Joinder Agreement or such other document as the Administrative Agent shall deem appropriate for such purpose and (ii) become a grantor under the Security Agreement by executing and delivering a Security Joinder Agreement with respect thereto, and (b) deliver to the Administrative Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and, if requested by Administrative Agent, favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (a)), all in form, content and scope reasonably satisfactory to the Administrative Agent. For avoidance of doubt, only operating Subsidiaries of the Borrower will be required to become Guarantors and grantors as described in this Section 6.12 , and in no case will Subsidiaries which are investment funds be required to become Guarantors and grantors.


ARTICLE VII.
NEGATIVE COVENANTS

        So long as any Revolving Lender shall have any Revolving Credit Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:

        7.01     Liens.     Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:

        (a)   Liens pursuant to any Loan Document;

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        (b)   Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 7.02(b) , and (iii) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.02(b) ;

        (c)   Liens for taxes, assessments or government charges or levies not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

        (d)   statutory Liens of landlords and carriers', warehousemen's, mechanics', materialmen's, suppliers', repairmen's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;

        (e)   pledges or deposits in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;

        (f)    deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

        (g)   easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

        (h)   Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) ;

        (i)    leases or subleases granted to others not interfering in any material respect with the business of the Borrower or its subsidiaries;

        (j)    Liens securing Indebtedness permitted under Section 7.02(e) ; provided that such Liens do not at any time encumber any property other than the property financed by such Indebtedness;

        (k)   normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;

        (l)    UCC financing statements filed for notice purposes only and not to perfect any Lien (unless such Lien is otherwise permitted under this Section 7.01 ); and

        (m)  Liens securing Indebtedness in an amount not to exceed US$5,000,000.

        7.02     Indebtedness.     Create, incur, assume or suffer to exist any Indebtedness, except:

        (a)   Indebtedness under the Loan Documents;

        (b)   Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan

51



Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;

        (c)   Guarantees of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any other Guarantor;

        (d)   obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a "market view;" and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;

        (e)   Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i) ; provided , however , that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed US$2,500,000;

        (f)    Indebtedness in an aggregate principal amount not to exceed US$10,000,000 at any time outstanding;

        (g)   Funded Indebtedness of the type described in paragraph (g) of the definition of Funded Indebtedness to the extent such Funded Indebtedness is an obligation to make any payment not prohibited as a Restricted Payment under Section 7.05 ;

        (h)   Indebtedness owing to the Borrower or any Guarantor; and

        (i)    Indebtedness under the Subordinated Notes.

        7.03     Fundamental Changes.     Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:

        (a)   any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that when any Guarantor is merging with another Subsidiary, the Guarantor shall be the continuing or surviving Person;

        (b)   any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or a Guarantor; and

        (c)   any Subsidiary may Dispose of all or substantially all of its assets to or in favor of any Person in one transaction or in a series of transactions, provided that such Disposition or Dispositions satisfy the requirements of Section 7.04(f) .

        7.04     Dispositions.     Make any Disposition, except:

        (a)   Dispositions of obsolete or worn out property or property no longer used or usable in the business of the Borrower, whether now owned or hereafter acquired, in the ordinary course of business;

        (b)   Dispositions of inventory and investments in the ordinary course of business;

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        (c)   Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;

        (d)   Dispositions of property by Borrower or any Subsidiary to the Borrower or to a Subsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor;

        (e)   Dispositions permitted by Section 7.03 ; and

        (f)    Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.04 ; provided that the aggregate book value of all property Disposed of in reliance on this clause (f) in any fiscal year shall not exceed US$5,000,000.

        7.05     Restricted Payments.     Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:

        (a)   each Subsidiary may make Restricted Payments to the Borrower, the Guarantors and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;

        (b)   the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;

        (c)   the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests;

        (d)   the Borrower may make the Specified Dividend;

        (e)   the Loan Parties may, for any period, make other Restricted Payments in the form of Distributions for the payment of taxes in an amount equal to taxes that would be owed (including estimated taxes), as determined by the Borrower in its reasonable discretion (using reasonable consistent assumptions), by any Person as a result of its direct or indirect ownership of a Loan Party or Subsidiary; provided that such Distributions for such period pursuant to this clause (e) shall not exceed an amount equal to the product of the Presumed Tax Rate and the taxable income of the Loan Parties and their Subsidiaries for such period, less any prior Distributions for estimated taxes (collectively, " Permitted Tax Distributions "); and

        (f)    the Borrower may make Restricted Payments in the form of dividends and other distributions to the Parent in order to pay expenses incurred by the Parent in the ordinary course of business.

        7.06     Change in Nature of Business.     Engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on the date hereof or any business substantially related, ancillary or incidental thereto.

        7.07     Transactions with Affiliates.     Enter into any transaction of any kind with any officer, director or Affiliate of any Loan Party, whether or not in the ordinary course of business, other than

        (a)   on terms substantially as favorable to the Borrower or such Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time in a comparable arm's length transaction with a Person other than such an officer, director or Affiliate;

        (b)   Loans and advances to officers and directors of any Loan Party in the ordinary course of business in an aggregate principal amount at any time outstanding not greater than US$1,000,000;

        (c)   transactions expressly permitted under this Agreement;

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        (d)   reasonable compensation and reimbursement of expenses of officers and directors of any Loan Party and the granting of Equity Interests to any such Persons;

        (e)   investments by officers, directors and Affiliates of any Loan Party in investment funds maintained by any Loan Party without the payment of normal fees or charges related thereto;

        (f)    transactions with any investment fund maintained by any Loan Party in the ordinary course of business;

        (g)   payments to the Parent as necessary for its operating expenses in the ordinary course of business; and

        (h)   the Subordinated Notes.

        7.08     Burdensome Agreements.     Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that limits the ability (i) of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor, (ii) to transfer property to the Borrower or any Guarantor, (iii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iv) of the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; provided , however , that this Section 7.08 shall not prohibit (a) any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.02(e) solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness, (b) any restrictions consisting of customary provisions restricting assignment, subletting or other transfers contained in leases, licenses or other agreements in the ordinary course of business so long as such restrictions do not extend to assets other than those that are the subject of such lease, license or other agreements, (c) restrictions with respect to any asset pending the close of the sale of such asset, or (d) exists in any agreement in effect at the time such Subsidiary becomes a Subsidiary of Borrower, so long as such agreement was not entered into in contemplation of such person becoming a Subsidiary.

        7.09     Use of Proceeds.     Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

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        7.10     Amendments to Subordinated Notes.     Amend, modify or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of any Subordinated Note in any manner that is materially adverse to the Lenders without the prior consent of the Administrative Agent (with the approval of the Required Lenders).


ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES

        8.01     Events of Default.     Any of the following shall constitute an Event of Default:

        (a)     Non-Payment.     The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within three Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within ten Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or

        (b)     Specific Covenants.     The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.03, 6.05(a), 6.10, 6.11 or 6.12 or Article VII ; or

        (c)     Other Defaults.     Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; or

        (d)     Representations and Warranties.     Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

        (e)     Cross-Default.     (i) The Borrower or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than US$10,000,000, and such failure shall continue after the applicable grace period, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than US$10,000,000; or

        (f)     Insolvency Proceedings, Etc.     Any Loan Party or any of its Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues

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undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or

        (g)     Inability to Pay Debts; Attachment.     (i) The Borrower or any Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or

        (h)     Judgments.     There is entered against the Borrower or any Subsidiary (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding US$10,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case and have not been stayed, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 30 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or

        (i)     ERISA.     (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the US$10,000,000, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of US$10,000,000; or

        (j)     Invalidity of Loan Documents.     Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document;

        (k)     Change of Voting Control.     There occurs any Change of Voting Control; or

        (l)     Collateral Documents.     The Security Agreement or any Security Joinder Agreement, after delivery thereof pursuant to Amendment No. 3 or Section 6.12 shall for any reason (other than pursuant to the terms thereof or through the actions of the Administrative Agent) cease to create a valid and perfected first priority Lien (subject to Permitted Liens) on the Collateral purported to be covered thereby.

        8.02     Remedies Upon Event of Default.     If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:

        (a)   declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;

        (b)   declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;

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        (c)   require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and

        (d)   exercise on behalf of itself or any Secured Party all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents;

provided, however, that upon the occurrence of Event of Default under Section 8.01(f), the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.

        8.03     Application of Funds.     After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02 ), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:

         First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III ) payable to the Administrative Agent in its capacity as such;

         Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees and amounts payable under Secured Hedge Agreements and Secured Cash Management Agreements) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer) and amounts payable under Article III ), ratably among them in proportion to the respective amounts described in this clause Second payable to them;

         Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;

         Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings and Obligations arising under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them;

         Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and

         Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.

Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting

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documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to the Credit Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a "Lender" party hereto.


ARTICLE IX.
ADMINISTRATIVE AGENT

        9.01     Appointment and Authority.     (a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such provisions.

        (b)   The Administrative Agent shall also act as the " collateral agent " under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as "collateral agent" and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX and Article X (including Section 10.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the "collateral agent" under the Loan Documents) as if set forth in full herein with respect thereto.

        9.02     Rights as a Lender.     The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

        9.03     Exculpatory Provisions.     The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent:

        (a)   shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

        (b)   shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any

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action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and

        (c)   shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

        The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02 ) or (ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.

        The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

        9.04     Reliance by Administrative Agent.     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

        9.05     Delegation of Duties.     The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

        9.06     Resignation of Administrative Agent.     The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Borrower, to appoint a

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successor, which shall be a bank with an office in the United States and be organized under the laws of the United States of America or any state thereof, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders, consented to by the Borrower, and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor's appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent's resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.

        Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer. Upon the acceptance of a successor's appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, (b) the retiring L/C Issuer shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.

        9.07     Non-Reliance on Administrative Agent and Other Lenders.     Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

        9.08     Administrative Agent May File Proofs of Claim.     In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the

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Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise

        (a)   to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.04(i) and  (j), 2.09 and 10.04 ) allowed in such judicial proceeding; and

        (b)   to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04.

        Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.

        9.09     Collateral and Guaranty Matters.     Each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion,

        (a)   to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) on the Facility Termination Date, (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) subject to Section 10.01, if approved, authorized or ratified in writing by the Required Lenders;

        (b)   to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(j) ; and

        (c)   to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.

        Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent's authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.09. In each case as specified in this Section 9.09, the Administrative Agent will, at the Borrower's expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.09.

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        9.10     Secured Cash Management Agreements and Secured Hedge Agreements.     No Cash Management Bank or Hedge Bank who obtains the benefit of the provisions of Section 8.03, the Guaranty or any Collateral by virtue of the provisions hereof or of the Guaranty or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements only if the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.


ARTICLE X.
MISCELLANEOUS

        10.01     Amendments, Etc.     No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:

        (a)   waive any condition set forth in Section 4.01(a) without the written consent of each Lender;

        (b)   extend or increase (i) the Revolving Credit Commitment of any Revolving Lender (or reinstate any Revolving Credit Commitment terminated pursuant to Section 8.02 ) without the written consent of such Revolving Lender, or (ii) the obligation of any Term Loan Lender to make any portion of the Term Loan without the written consent of such Term Loan Lender;

        (c)   postpone any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayments of principal, interest, fees or other amounts due to the Lenders (or any of them), including the Term Loan Maturity Date and the Revolving Credit Maturity Date, in each case without the written consent of each Lender directly affected thereby;

        (d)   reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iii) of the second proviso to this Section 10.01 ) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of "Default Rate" or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;

        (e)   change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;

        (f)    amend Section 1.08 or the definition of "Alternative Currency" without the written consent of the L/C Issuer;

        (g)   change any provision of this Section or the definition of "Required Lenders" or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;

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        (h)   change any provision of the definition of "Required Revolving Lenders" or any other provision hereof specifying the number or percentage of Revolving Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Revolving Lender;

        (i)    change any provision of the definition of "Required Term Loan Lenders" or any other provision hereof specifying the number or percentage of Term Loan Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Term Loan Lender; or

        (j)    release all or substantially all of the value of the Guaranty without the written consent of each Lender, except to the extent the release of any Guarantor is permitted pursuant to Section 9.09 (in which case such release may be made by the Administrative Agent acting alone);

and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iii) no Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto and (iv) no amendment, waiver or consent which has the effect of enabling the Borrower to satisfy any condition to a Borrowing contained in subsection 4.02 hereof which, but for such amendment, waiver or consent would not be satisfied, shall be effective to require the Revolving Lenders or the L/C Issuer to make any additional Revolving Loan, or to issue any additional or renew any existing Letter of Credit, unless and until the Required Revolving Lenders (or, if applicable, all Revolving Lenders) shall have approved such amendment, waiver or consent. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Revolving Credit Commitment of such Lender may not be increased or extended without the consent of such Lender.

        If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document (each such Lender, a " Non-Consenting Lender ") that requires the consent of each Lender and that has been approved by the Required Lenders, the Borrower may replace such Non-Consenting Lender in accordance with subsection 10.13; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrower to be made pursuant to this paragraph).

        10.02     Notices; Effectiveness; Electronic Communication.     

        (a)     Notices Generally.     Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

        Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been

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given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).

        (b)     Electronic Communications.     Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

        Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

        (c)     The Platform.     THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the " Agent Parties ") have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower's or the Administrative Agent's transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

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        (d)     Change of Address, Etc.     Each of the Borrower, the Administrative Agent, and the L/C Issuer may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent and the L/C Issuer. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the "Private Side Information" or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender's compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the "Public Side Information" portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.

        (e)     Reliance by Administrative Agent, L/C Issuer and Lenders.     The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic Revolving Loan Notices and Term Loan Interest Rate Selection Notices) given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

        10.03     No Waiver; Cumulative Remedies.     No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

        10.04     Expenses; Indemnity; Damage Waiver.     

        (a)     Costs and Expenses.     The Borrower shall pay (i) all reasonable documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable documented out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all documented out-of-pocket expenses incurred by the Administrative Agent or the L/C Issuer (including the reasonable fees, charges and disbursements of any counsel for the Administrative Agent or the L/C Issuer) in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses

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incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.

        (b)     Indemnification by the Borrower.     The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an " Indemnitee ") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable documented fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (y) do not involve a direct act or omission of the Borrower or its Subsidiaries and are brought by an Indemnitee against any other Indemnitee.

        (c)     Reimbursement by Lenders.     To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender's ratable share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).

        (d)     Waiver of Consequential Damages, Etc.     To the fullest extent permitted by applicable law, none of the Borrower, the Administrative Agent or any of the Lenders shall assert, and each of them hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual

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damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.

        (e)     Payments.     All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.

        (f)     Survival.     The agreements in this Section shall survive the resignation of the Administrative Agent and the L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

        10.05     Payments Set Aside.     To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

        10.06     Successors and Assigns.     

        (a)     Successors and Assigns Generally.     The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

        (b)     Assignments by Lenders.     Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and its Revolving Loans (including for purposes of this subsection (b), participations in L/C Obligations) or of its Pro Rata Term Share of the Term Loan at the time owing to it (such Lender's portion of Loans, commitments and risk participations with respect to each of the Revolving Credit Facility and the Term Loan Facility (each, an " Applicable Facility ") being referred to in this Section 10.06 as its " Applicable Share ")) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

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        Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by

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such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.

        (c)     Register.     The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent's Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Revolving Credit Commitments of Revolving Lenders and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the " Register "). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

        (d)     Participations.     Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower's Affiliates or Subsidiaries) (each, a " Participant ") in all or a portion of such Lender's rights and/or obligations under this Agreement (including all or a portion of its Revolving Credit Commitment, if applicable, and/or the Loans (including such Lender's participations in L/C Obligations, if applicable) owing to it); provided that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement.

        Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender. In the event that any Lender sells a participation pursuant to this Section 10.06(d), such Lender shall maintain with respect to such participation, acting solely for this purpose as an agent of the Borrower, a register comparable to the Register (the " Participant Register "). Interests in the rights and/or obligations of a Lender under this Agreement may be participated in whole or in part only by registration of such participation on such Participant Register. If requested by the Administrative Agent or the Borrower, such Lender shall make the Participant Register available to Administrative Agent or the Borrower upon either (i) the exercise by a Participant of remedies hereunder or (ii) a request for the Register by the IRS.

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        (e)     Limitations upon Participant Rights.     A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.

        (f)     Certain Pledges.     Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

        (g)     Electronic Execution of Assignments.     The words "execution," "signed," "signature," and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

        (h)     Resignation as L/C Issuer after Assignment.     Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Revolving Credit Commitment and Revolving Loans pursuant to subsection (b) above, Bank of America may, upon 30 days' notice to the Borrower and the Lenders, resign as L/C Issuer. In the event of any such resignation as L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer hereunder; provided , however , that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Revolving Lenders to make Base Rate Revolving Loans or fund risk participations in Drawn Amounts pursuant to Section 2.04(c) ). Upon the appointment of a successor L/C Issuer, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such successor or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.

        10.07     Treatment of Certain Information; Confidentiality.     Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below) and to not use the Information for any purpose except in connection with the Loan Documents, except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates' respective partners, directors, officers, employees, agents, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same

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as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) with the prior written consent of the Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower.

        For purposes of this Section, " Information " means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

        Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.

        10.08     Right of Setoff.     If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

        10.09     Interest Rate Limitation.     Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the " Maximum Rate "). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

        10.10     Counterparts; Integration; Effectiveness.     This Agreement and the other Loan Documents may be executed in counterparts (and by different parties hereto in different counterparts), each of

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which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01 , this Agreement and the other Loan Documents shall become effective when they shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement and any other Loan Document by telecopy or electronic format (including .pdf) shall be effective as delivery of a manually executed counterpart of this Agreement and the other Loan Documents.

        10.11     Survival of Representations and Warranties.     All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

        10.12     Severability.     If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

        10.13     Replacement of Lenders.     If any Lender requests compensation under Section 3.04 , or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , if any Lender is a Defaulting Lender or if any Lender is a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06 ), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

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        A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

        10.14     Governing Law; Jurisdiction; Etc.     

        (a)     GOVERNING LAW.     THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

        (b)     SUBMISSION TO JURISDICTION.     EACH LOAN PARTY, EACH LENDER, THE L/C ISSUER AND THE ADMINISTRATIVE AGENT 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 OF THE SOUTHERN DISTRICT, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO 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 AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

        (c)     WAIVER OF VENUE.     EACH LOAN PARTY, EACH LENDER, THE L/C ISSUER AND THE ADMINISTRATIVE AGENT IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO 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.

        (d)     SERVICE OF PROCESS.     EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

        10.15     Waiver of Jury Trial.     EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT,

73



IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

        10.16     No Advisory or Fiduciary Responsibility.     In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates' understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent are arm's-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates or any other Person and (B) the Administrative Agent and no obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents and (iii) the Administrative Agent and its Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and it Affiliates, and the Administrative Agent has no obligation to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

        10.17     USA PATRIOT Act Notice.     Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the " Act "), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Act.

        10.18     Judgment Currency.     If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day on which final judgment is given. The obligation of the Borrower in respect of any such sum due from it to the Administrative Agent, the L/C Issuer or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the " Judgment Currency ") other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the " Agreement Currency "), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent, the L/C Issuer or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent, the L/C Issuer or such Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent, the L/C Issuer or any Lender from the Borrower in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent, the L/C Issuer or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum

74



originally due to the Administrative Agent, the L/C Issuer or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to the Borrower.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

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         IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed as of the date first above written.

    PZENA INVESTMENT MANAGEMENT, LLC

 

 

By:

 

  

        Name:    
        Title:    

S-1


    BANK OF AMERICA, N.A., as Administrative Agent

 

 

By:

 

  

        Name:    
        Title:    

S-2


    BANK OF AMERICA, N.A., as a Lender and L/C Issuer

 

 

By:

 

  

        Name:    
        Title:    

S-3




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CREDIT AGREEMENT
FORM OF SECURITY AGREEMENT To be attached
CREDIT AGREEMENT
PZENA INVESTMENT MANAGEMENT, LLC as the Borrower,
BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer,
TABLE OF CONTENTS
CREDIT AGREEMENT
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
ARTICLE V. REPRESENTATIONS AND WARRANTIES
ARTICLE VI. AFFIRMATIVE COVENANTS
ARTICLE VII. NEGATIVE COVENANTS
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
ARTICLE IX. ADMINISTRATIVE AGENT
ARTICLE X. MISCELLANEOUS

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Exhibit 10.3


SECURITY AGREEMENT

         THIS SECURITY AGREEMENT dated as of October 28, 2008 (this " Security Agreement ") is being entered into among PZENA INVESTMENT MANAGEMENT, LLC , a Delaware limited liability company (the " Borrower "), EACH OF THE UNDERSIGNED SUBSIDIARIES OF THE BORROWER AND EACH OTHER PERSON WHO SHALL BECOME A PARTY HERETO BY EXECUTION OF A SECURITY JOINDER AGREEMENT (each a " Guarantor " and, together with the Borrower, collectively, the " Grantors "), and BANK OF AMERICA, N.A. , as Administrative Agent (in such capacity, the " Administrative Agent ") for each of the Secured Parties (as defined in the Credit Agreement referenced) below.


RECITALS:

        A.    Pursuant to a Credit Agreement dated as of July 23, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the " Credit Agreement "), among the Borrower, the Administrative Agent, Bank of America, N.A., as L/C Issuer, and the lenders now or hereafter party thereto (the " Lenders "), the Lenders have agreed to provide to the Borrower a term loan and a revolving credit facility with a letter of credit sublimit.

        B.    Certain additional extensions of credit may be made from time to time for the benefit of the Grantors pursuant to certain Cash Management Agreements and Hedge Agreements (each as defined in the Credit Agreement).

        C.    It is a condition precedent to the Secured Parties' obligations to make and maintain such extensions of credit that the Grantors shall have executed and delivered this Security Agreement to the Administrative Agent.

        In order to induce the Secured Parties to from time to time make and maintain extensions of credit under the Credit Agreement and such Cash Management Agreements and Hedge Agreements, the parties hereto agree as follows:

        1.     Certain Definitions.     All capitalized terms used but not otherwise defined herein shall have the meanings assigned thereto in the Credit Agreement. Terms used in this Security Agreement that are not otherwise expressly defined herein or in the Credit Agreement, and for which meanings are provided in the UCC, shall have such meanings as provided in the UCC. In addition, for purposes of this Security Agreement, " Secured Obligations " means (a) as to the Borrower, all of the Obligations, including, the payment and performance of its obligations and liabilities (whether now existing or hereafter arising) (i) under the Credit Agreement and each of the other Loan Documents (including this Security Agreement) to which it is now or hereafter becomes a party, and (ii) any Secured Cash Management Agreements and Secured Hedge Agreements to which it is now or hereafter becomes a party, and (b) as to each Guarantor, the payment and performance of its obligations and liabilities (whether now existing or hereafter arising) (i) under the Guaranty and each of the other Loan Documents (including this Security Agreement) to which it is now or hereafter becomes a party, and (ii) any Secured Cash Management Agreements and Secured Hedge Agreements to which it is now or hereafter becomes a party.

        2.     Grant of Security Interest.     Each Grantor hereby grants as collateral security for the payment, performance and satisfaction of the Secured Obligations, to the Administrative Agent for the benefit of the Secured Parties a continuing first priority security interest in and to, and collaterally assigns to the Administrative Agent for the benefit of the Secured Parties, the following property of such Grantor or in which such Grantor has or may have or acquire an interest or the power to transfer rights therein, whether now owned or existing or hereafter created, acquired or arising and wheresoever located:


        All of the property and interests in property described in subsections (a) through (c) are herein collectively referred to as the " Collateral ."

        3.     Perfection.     As of the date of execution of this Security Agreement or Security Joinder Agreement by each Grantor, as applicable (with respect to each Grantor, its " Applicable Date "), such Grantor shall have furnished the Administrative Agent with duly authorized financing statements in form, number and substance suitable for filing, sufficient under applicable law, and satisfactory to the Administrative Agent in order that upon the filing of the same the Administrative Agent, for the benefit of the Secured Parties, shall have a duly perfected security interest in all Collateral in which a security interest can be perfected by the filing of financing statements, with the effect that the Liens conferred in favor of the Administrative Agent shall be and remain duly perfected and of first priority subject only, to the extent applicable, to Permitted Liens. All financing statements (including all amendments thereto and continuations thereof) are sometimes referred to herein as " Perfection Documents ". The delivery of possession of items of or evidencing Collateral, causing other Persons to execute and deliver Perfection Documents as appropriate, the filing or recordation of Perfection Documents, the establishment of control over items of Collateral, and the taking of such other actions as may be necessary or advisable in the determination of the Administrative Agent to create, enforce, protect, perfect, or establish or maintain the priority of, the security interest of the Administrative Agent for the benefit of the Secured Parties in the Collateral is sometimes referred to herein as " Perfection Action ".

        4.     Maintenance of Security Interest; Further Assurances.     

2


        5.     Receipt of Payment.     In the event an Event of Default shall occur and be continuing and a Grantor (or any of its Affiliates, subsidiaries, stockholders, directors, officers, employees or agents) shall receive any proceeds of Collateral, including without limitation monies, checks, notes, drafts or any other items of payment, at the direction of the Administrative Agent, each Grantor shall hold all such items of payment in trust for the Administrative Agent for the benefit of the Secured Parties, and as the property of the Administrative Agent for the benefit of the Secured Parties, separate from the funds and other property of such Grantor, and no later than the first Business Day following the receipt thereof, at the election of the Administrative Agent, such Grantor shall cause such Collateral to be forwarded to the Administrative Agent for its custody, possession and disposition on behalf of the Secured Parties in accordance with the terms hereof and of the other Loan Documents.

        6.     Preservation and Protection of Collateral.     

3


        7.     Status of Grantors and Collateral Generally.     Each Grantor represents and warrants to, and covenants with, the Administrative Agent for the benefit of the Secured Parties, with respect to itself and the Collateral as to which it has or acquires any interest, that:

4


        8.     Inspection.     Each Grantor shall comply with Section 6.10 of the Credit Agreement as if it were the Borrower, and if an Event of Default has occurred and is continuing the Administrative Agent (by any of its representatives or independent contractors) shall have the right to contact Persons obligated on any Accounts of such Grantor (" Account Debtors ") to verify the amount, quality, value and condition of, or any other matter relating to, the Collateral with such Account Debtors.

        9.     Accounts.     With respect to its Accounts whether now existing or hereafter created or acquired and wheresoever located, each Grantor represents, warrants and covenants to the Administrative Agent for the benefit of the Secured Parties that:

        10.     Rights and Remedies Upon Event of Default.     Upon and after an Event of Default, the Administrative Agent shall have the following rights and remedies on behalf of the Secured Parties in

5


addition to any rights and remedies set forth elsewhere in this Security Agreement or the other Loan Documents, all of which may be exercised with or, if allowed by law, without notice to a Grantor:

        The net cash proceeds resulting from the collection, liquidation, sale, or other disposition of the Collateral shall be applied first to the expenses (including all Attorneys' Costs) of retaking, holding, storing, processing and preparing for sale, selling, collecting, liquidating and the like, and then to the

6


satisfaction of all Secured Obligations in accordance with the terms of Section 8.03 of the Credit Agreement. Each Grantor shall be liable to the Administrative Agent, for the benefit of the Secured Parties, and shall pay to the Administrative Agent, for the benefit of the Secured Parties, on demand any deficiency which may remain after such sale, disposition, collection or liquidation of the Collateral.

        11.     Attorney-in-Fact.     Each Grantor hereby appoints the Administrative Agent as the Grantor's attorney-in-fact for the purposes of carrying out the provisions of this Security Agreement and taking any action and executing any instrument which the Administrative Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest; provided, that the Administrative Agent shall have and may exercise rights under this power of attorney only upon the occurrence and during the continuance of an Event of Default. Without limiting the generality of the foregoing, upon the occurrence and during the continuance of an Event of Default, the Administrative Agent shall have the right and power

        12.     Reinstatement.     The granting of a security interest in the Collateral and the other provisions hereof shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Obligations is rescinded or must otherwise be returned by any Secured Party or is repaid by any Secured Party in whole or in part in good faith settlement of a pending or threatened avoidance claim, whether upon the insolvency, bankruptcy or reorganization of any Grantor or any other Loan Party or otherwise, all as though such payment had not been made. The provisions of this Section 12 shall survive repayment of all of the Secured Obligations and the termination or expiration of this Security Agreement in any manner, including but not limited to termination upon occurrence of the Facility Termination Date.

        13.     Certain Waivers by the Grantors.     Each Grantor waives to the extent permitted by applicable law (a) any right to require any Secured Party or any other obligee of the Secured Obligations to (x) proceed against any Person or entity, including without limitation any Loan Party, (y) proceed against or exhaust any Collateral or other collateral for the Secured Obligations, or (z) pursue any other remedy in its power; (b) any defense arising by reason of any disability or other defense of any other Person, or by reason of the cessation from any cause whatsoever of the liability of any other Person or entity, (c) any right of subrogation, and (d) any right to enforce any remedy which any Secured Party or any other obligee of the Secured Obligations now has or may hereafter have against any other Person and any benefit of and any right to participate in any collateral or security whatsoever now or hereafter held by the Administrative Agent for the benefit of the Secured Parties. Each Grantor

7



authorizes each Secured Party and each other obligee of the Secured Obligations without notice (except notice required by applicable law) or demand and without affecting its liability hereunder or under the Loan Documents from time to time to: (i) take and hold security, other than the Collateral herein described, for the payment of such Secured Obligations or any part thereof, and exchange, enforce, waive and release the Collateral herein described or any part thereof or any such other security; and (ii) apply such Collateral or other security and direct the order or manner of sale thereof as such Secured Party or obligee in its discretion may determine.

        The Administrative Agent may at any time deliver (without representation, recourse or warranty) the Collateral or any part thereof to a Grantor and the receipt thereof by such Grantor shall be a complete and full acquittance for the Collateral so delivered, and the Administrative Agent shall thereafter be discharged from any liability or responsibility therefor.

        14.     Continued Powers.     Until the Facility Termination Date shall have occurred, the power of sale and other rights, powers and remedies granted to the Administrative Agent for the benefit of the Secured Parties hereunder shall continue to exist and may be exercised by the Administrative Agent at any time and from time to time irrespective of the fact that any of the Secured Obligations or any part thereof may have become barred by any statute of limitations or that any part of the liability of any Grantor may have ceased.

        15.     Other Rights.     The rights, powers and remedies given to the Administrative Agent for the benefit of the Secured Parties by this Security Agreement shall be in addition to all rights, powers and remedies given to the Administrative Agent or any Secured Party under any other Loan Document or by virtue of any statute or rule of law. Any forbearance or failure or delay by the Administrative Agent in exercising any right, power or remedy hereunder shall not be deemed to be a waiver of such right, power or remedy, and any single or partial exercise of any right, power or remedy hereunder shall not preclude the further exercise thereof; and every right, power and remedy of the Secured Parties shall continue in full force and effect until such right, power or remedy is specifically waived in accordance with the terms of the Credit Agreement.

        16.     Anti-Marshaling Provisions.     The right is hereby given by each Grantor to the Administrative Agent, for the benefit of the Secured Parties, to make releases (whether in whole or in part) of all or any part of the Collateral agreeable to the Administrative Agent without notice to, or the consent, approval or agreement of other parties and interests, including junior lienors, which releases shall not impair in any manner the validity of or priority of the Liens and security interests in the remaining Collateral conferred hereunder, nor release any Grantor from personal liability for the Secured Obligations. Notwithstanding the existence of any other security interest in the Collateral held by the Administrative Agent, for the benefit of the Secured Parties, the Administrative Agent shall have the right to determine the order in which any or all of the Collateral shall be subjected to the remedies provided in this Security Agreement. Each Grantor hereby waives any and all right to require the marshaling of assets in connection with the exercise of any of the remedies permitted by applicable law or provided herein or in any other Loan Document.

        17.     Entire Agreement.     This Security Agreement and each Security Joinder Agreement, together with the Credit Agreement and other Loan Documents, constitutes and expresses the entire understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior negotiations, agreements and understandings, inducements, commitments or conditions, express or implied, oral or written, except as contained in the Loan Documents. The express terms hereof and of the Security Joinder Agreements control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof or thereof. Neither this Security Agreement nor any Security Joinder Agreement nor any portion or provision hereof or thereof may be changed, altered, modified, supplemented, discharged, canceled, terminated, or amended orally or in any manner other than as provided in the Credit Agreement.

8


        18.     Third Party Reliance.     Each Grantor hereby consents and agrees that all issuers of or obligors in respect of any Collateral, and all securities intermediaries, warehousemen, bailees, public officials and other Persons having any interest in, possession of, control over or right, privilege, duty or discretion in respect of, any Collateral shall be entitled to accept the provisions hereof and of the Security Joinder Agreements as conclusive evidence of the right of the Administrative Agent, on behalf of the Secured Parties, to exercise its rights hereunder or thereunder with respect to the Collateral, notwithstanding any other notice or direction to the contrary heretofore or hereafter given by any Grantor or any other Person to any of such Persons.

        19.     Binding Agreement; Assignment.     This Security Agreement and each Security Joinder Agreement, and the terms, covenants and conditions hereof and thereof, shall be binding upon and inure to the benefit of the parties hereto, and to their respective successors and assigns, except that no Grantor shall be permitted to assign this Security Agreement, any Security Joinder Agreement or any interest herein or therein or, except as expressly permitted herein or in the Credit Agreement, in the Collateral or any part thereof or interest therein. Without limiting the generality of the foregoing sentence of this Section 19, any Lender may assign to one or more Persons, or grant to one or more Persons participations in or to, all or any part of its rights and obligations under the Credit Agreement (to the extent permitted by the Credit Agreement); and to the extent of any such assignment or participation such other Person shall, to the fullest extent permitted by law, thereupon become vested with all the benefits in respect thereof granted to such Lender herein or otherwise, subject however, to the provisions of the Credit Agreement, including Article IX thereof (concerning the Administrative Agent) and Section 10.06 thereof (concerning assignments and participations). All references herein to the Administrative Agent and to the Secured Parties shall include any successor thereof or permitted assignee, and any other obligees from time to time of the Secured Obligations.

        20.     Secured Cash Management Agreements and Secured Hedging Agreements.     No Secured Party (other than the Administrative Agent) that obtains the benefit of this Security Agreement shall have any right to notice of any action or to consent to, direct or object to any action hereunder or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Security Agreement to the contrary, the Administrative Agent shall only be required to verify the payment of, or that other satisfactory arrangement have been made with respect to, the Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements to the extent the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as it may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Secured Party not a party to the Credit Agreement that obtains the benefit of this Security Agreement shall be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of the Credit Agreement, and that with respect to the actions and omissions of the Administrative Agent hereunder or otherwise relating hereto that do or may affect such Secured Party, the Administrative Agent and each of its Related Parties shall be entitled to all the rights, benefits and immunities conferred under Article IX of the Credit Agreement.

        21.     Severability.     If any provision of this Security Agreement is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Security Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

        22.     Counterparts.     This Security Agreement may be executed in any number of counterparts each of which when so executed and delivered shall be deemed an original, and it shall not be necessary in

9



making proof of this Security Agreement to produce or account for more than one such counterpart executed by the Grantor against whom enforcement is sought. Without limiting the foregoing provisions of this Section 22, the provisions of Section 10.10 of the Credit Agreement shall be applicable to this Security Agreement.

        23.     Termination.     Subject to the provisions of Section 12, this Security Agreement and each Security Joinder Agreement, and all obligations of the Grantors hereunder (excluding those obligations and liabilities that expressly survive such termination) shall terminate without delivery of any instrument or performance of any act by any party on the Facility Termination Date. Upon such termination of this Security Agreement, the Administrative Agent shall, at the request and sole expense of the Grantors, promptly deliver to the Grantors such termination statements and take such further actions as the Grantors may reasonably request to terminate of record, or otherwise to give appropriate notice of the termination of, any Lien conferred hereunder.

        24.     Notices.     Any notice required or permitted hereunder shall be given (a) with respect to the Borrower, at the address for the giving of notice then in effect under the Credit Agreement, (b) with respect to any Grantor, at the address then in effect for the giving of notices to such Grantor under the Guaranty, and (c) with respect to the Administrative Agent or a Lender, at the Administrative Agent's address indicated in Schedule 10.02 of the Credit Agreement. All such addresses may be modified, and all such notices shall be given and shall be effective, as provided in Schedule 10.02 of the Credit Agreement for the giving and effectiveness of notices and modifications of addresses thereunder.

        25.     Joinder.     Each Person that shall at any time execute and deliver to the Administrative Agent a Security Joinder Agreement substantially in the form attached as Exhibit A hereto shall thereupon irrevocably, absolutely and unconditionally become a party hereto and obligated hereunder as a Grantor and shall have thereupon pursuant to Section 2 hereof granted a security interest in and collaterally assigned to the Administrative Agent for the benefit of the Secured Parties all Collateral in which it has at its Applicable Date or thereafter acquires any interest or the power to transfer, and all references herein and in the other Loan Documents to the Grantors or to the parties to this Security Agreement shall be deemed to include such Person as a Grantor hereunder. Each Security Joinder Agreement shall be accompanied by the Supplemental Schedules referred to therein, appropriately completed with information relating to the Grantor executing such Security Joinder Agreement and its property. Each of the applicable Schedules attached hereto shall be deemed amended and supplemented without further action by such information reflected on the Supplemental Schedules.

        26.     Rules of Interpretation.     The rules of interpretation contained in Section 1.02 of the Credit Agreement shall be applicable to this Security Agreement and each Security Joinder Agreement and are hereby incorporated by reference. All representations and warranties contained herein shall survive the delivery of documents and any Credit Extensions referred to herein or secured hereby.

        27.     Governing Law; Jurisdiction; Etc.     

10


        28.     Waiver of Jury Trial.     EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR ANY SECURITY JOINDER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS SECURITY AGREEMENT OR ANY SECURITY JOINDER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

[Signature page follows.]

11


         IN WITNESS WHEREOF , the parties have duly executed this Security Agreement on the day and year first written above.

    GRANTORS:

 

 

PZENA INVESTMENT MANAGEMENT, LLC

 

 

By:

 

/s/ WAYNE A. PALLADINO

        Name:   Wayne A. Palladino

        Title:   Chief Financial Officer


 

 

PZENA ALTERNATIVE INVESTMENTS, LLC

 

 

By:

 

/s/ LAWRENCE KOHN

        Name:   Lawrence Kohn

        Title:   President


    ADMINISTRATIVE AGENT:

 

 

BANK OF AMERICA, N.A. , as Administrative Agent

 

 

By:

 

/s/ FRED ZAGAR

        Name:   Fred Zagar

        Title:   Senior Vice President



SCHEDULE 7(f)

Grantor Information

I.   II.   III.   IV.   V.   VI.
Name   Jurisdiction of
Formation/
Form of Equity/I.D.
Number
  Address of Chief
Executive Office
  Trade Styles   Collateral
Locations
(and Type
of Collateral)
  Name and address
of Owner of
Collateral Location
(If other than Grantor)
Pzena Investment Management, LLC   Delaware/2565079   120 West 45 th  Street,
20 th  Floor
New York, New York
10036
  None   120 West 45 th  Street,
20 th  Floor
New York, New York
10036
  N/A

Pzena Alternative Investments, LLC

 

Delaware/4112085

 

120 West 45 th  Street,
20 th  Floor
New York, New York
10036

 

None

 

120 West 45 th  Street,
20 th  Floor
New York, New York
10036

 

N/A


EXHIBIT A

Form of Security Joinder Agreement
SECURITY JOINDER AGREEMENT

THIS SECURITY JOINDER AGREEMENT dated as of                                , 20    (this " Security Joinder Agreement "), is made by                                    , a                                    (the " Joining Grantor "), in favor of BANK OF AMERICA, N.A. , in its capacity as Administrative Agent (the " Administrative Agent ") for the Secured Parties (as defined in the Credit Agreement referenced below; all capitalized terms used but not defined herein shall have the meanings given to such terms in such Credit Agreement).

RECITALS:

        A.    Pursuant to a Credit Agreement dated as of July 23, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the " Credit Agreement "), among Pzena Investment Management, LLC, a Delaware limited liability company (the " Borrower "), the Administrative Agent, Bank of America, N.A., as L/C Issuer, and the lenders now or hereafter party thereto (the " Lenders "), the Lenders have agreed to provide to the Borrower a term loan and revolving credit facility with a letter of credit sublimit.

        B.    The Borrower, certain of its Subsidiaries and the Administrative Agent, are party to a Security Agreement dated as of October 28, 2008 (as in effect on the date hereof, the " Security Agreement ").

        C.    The Joining Grantor is a Subsidiary of the Borrower and is required by the terms of the Credit Agreement to become a Guarantor and be joined as a party to the Security Agreement as a Grantor.

        D.    The Joining Grantor will materially benefit directly and indirectly from the making and maintenance of the extensions of credit made from time to time under the Credit Agreement, Cash Management Agreements and Hedge Agreements.

        In order to induce the Secured Parties to from time to time make and maintain extensions of credit under the Credit Agreement, Cash Management Agreements and Hedge Agreements, the Joining Grantor hereby agrees as follows:

        1.     Joinder.     The Joining Grantor hereby irrevocably, absolutely and unconditionally becomes a party to the Security Agreement as a Grantor and bound by all the terms, conditions, obligations, liabilities and undertakings of each Grantor or to which each Grantor is subject thereunder. In furtherance of the foregoing, the Joining Grantor hereby grants a security interest to the Administrative Agent for the benefit of the Secured Parties in the property and property rights constituting Collateral (as defined in Section 2 of the Security Agreement) of such Grantor or in which such Grantor has or may have or acquire an interest or the power to transfer rights therein, whether now owned or existing or hereafter created, acquired or arising and wheresoever located, as security for the payment and performance of the Secured Obligations, all with the same force and effect as if the Joining Grantor were a signatory to the Security Agreement.

        2.     Affirmations.     The Joining Grantor hereby acknowledges and reaffirms as of the date hereof with respect to itself, its properties and its affairs each of the waivers, representations, warranties, acknowledgements and certifications applicable to any Grantor contained in the Security Agreement.

        3.     Supplemental Schedules.     Attached to this Security Joinder Agreement are duly completed schedules (the " Supplemental Schedules ") supplementing as thereon indicated the respective Schedules to the Security Agreement. The Joining Grantor represents and warrants that the information contained on each of the Supplemental Schedules with respect to such Joining Grantor and its properties and affairs is true, complete and accurate as of the date hereof.

        4.     Severability.     The provisions of this Security Joinder Agreement are independent of and separable from each other. If any provision hereof shall for any reason be held invalid or



unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision hereof, but this Security Joinder Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.

        5.     Counterparts.     This Security Joinder Agreement may be executed in any number of counterparts each of which when so executed and delivered shall be deemed an original, and it shall not be necessary in making proof of this Security Joinder Agreement to produce or account for more than one such counterpart executed by the Joining Grantor. Without limiting the foregoing provisions of this Section 5 , the provisions of Section 10.10 of the Credit Agreement shall be applicable to this Security Joinder Agreement.

        6.     Delivery.     Joining Grantor hereby irrevocably waives notice of acceptance of this Security Joinder Agreement and acknowledges that the Secured Obligations are and shall be deemed to be incurred, and credit extensions under the Loan Documents, Cash Management Agreement and Hedge Agreements made and maintained, in reliance on this Security Joinder Agreement and the Grantor's joinder as a party to the Security Agreement as herein provided.

        7.     Governing Law; Jurisdiction; Waiver of Jury Trial; Etc..     The provisions of Sections 27 and 28 of the Security Agreement are hereby incorporated by reference as if fully set forth herein.

[Signature page follows.]

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         IN WITNESS WHEREOF , the Joining Grantor has duly executed and delivered this Security Joinder Agreement as of the day and year first written above.

    JOINING GRANTOR:

 

 


 

 

 

By:

 

  

        Name:    
        Title:    

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SUPPLEMENTAL
SCHEDULE 7(f)

Grantor Information

I.   II.   III.   IV.   V.   VI.
Name   Jurisdiction of
Formation/
Form of Equity/I.D.
Number
  Address of Chief
Executive Office
  Trade Styles   Collateral
Locations
(and Type
of Collateral)
  Name and address
of Owner of
Collateral Location
(If other than Grantor)
                     

 

 

 

 

 

 

 

 

 

 

 
                   

Delivered pursuant to Security Joinder Agreement of                                    .

Applicable Date:                                    , 20    




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SECURITY AGREEMENT
RECITALS

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Exhibit 10.4


AS ADOPTED BY THE BOARD OF DIRECTORS
OF PZENA INVESTMENT MANAGEMENT, INC. ON
OCTOBER 24, 2007


PZENA INVESTMENT MANAGEMENT, LLC

AMENDED AND RESTATED BONUS PLAN

Effective as of October 30, 2007

Amended as of October 21, 2008



TABLE OF CONTENTS

 
   
  Page
1.   Purpose   1

2.

 

Nature of Plan

 

1

3.

 

Definitions

 

1

4.

 

Bonus Awards

 

3

5.

 

Mandatory Deferral of Restricted Amounts

 

5

6.

 

Accounts

 

7

7.

 

Administration

 

8

8.

 

Amendment and Termination

 

9

9.

 

Unfunded Status of Accounts

 

9

10.

 

Effective Date

 

9

11.

 

Miscellaneous

 

9

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PZENA INVESTMENT MANAGEMENT, LLC
AMENDED AND RESTATED BONUS PLAN


Effective as of October 30, 2007

1.     Purpose

        Pzena Investment Management, LLC adopted the Pzena Investment Management, LLC Bonus Plan effective as of January 1, 2007, for bonus amounts earned in Fiscal Years beginning on or after January 1, 2007. Pzena Investment Management, LLC hereby adopts this Pzena Investment Management, LLC Amended and Restated Bonus Plan effective as of October 30, 2007. The purpose of the Plan is to enable the Company to attract, retain, motivate and reward highly qualified individuals to provide services to the Company by (1) providing for grants of bonus compensation to eligible employees and members of the Company; (2) providing that a portion of the bonus awards made to certain highly compensated individuals shall be deferred on a mandatory basis under the Plan and shall vest and become payable over a four-year period; and (3) permitting members of Pzena Investment Management, LLC to elect to receive a portion of their bonus compensation that is mandatorily deferred in the form of Restricted Share Units of the Company.

2.     Nature of Plan

        The Plan is intended to be an unfunded bonus program of the Company in accordance with Department of Labor Regulations Section 2510.3-2(c). Any deferral of bonus compensation under this Plan is intended to be for a limited period of time only and for the purposes of encouraging a Participant's continued Service with the Company, and the Plan is not intended to provide retirement income to Participants or to defer income by Participants to termination of covered employment and beyond. The Plan is intended to satisfy the requirements of Section 409A of the Code. The Plan shall be interpreted, operated and administered in a manner consistent with these intentions.

3.     Definitions

        3.1.   Account shall mean a bookkeeping account established and maintained by the Company for a Participant in accordance with Section 6 to which is credited all or a portion of the Participant's Bonus Award for a Fiscal Year and to which are credited income, gains and losses in accordance with Section 6.3.

        3.2.   Allocation Date shall have the meaning set forth in Section 4.2.

        3.3.   Bonus Award shall mean an award of bonus or incentive compensation made by the Company to an Eligible Individual with respect to a Fiscal Year in accordance with Section 4.

        3.4.   Cause shall have the meaning set forth in the Operating Agreement, provided that references to an "Employee Member" shall be replaced by references to a "Participant."

        3.5.   Client shall have the meaning set forth in the Operating Agreement, provided that references to an "Employee Member" shall be replaced by references to a "Participant."

        3.6.   Code shall mean the Internal Revenue Code of 1986, as amended from time to time.

        3.7.   Committee means any committee of the board of directors of Pzena Investment Management, Inc., in its capacity as the Managing Member of the Company, that is delegated responsibility by such board of directors for the administration of the Plan, as provided in Section 7 of the Plan; provided, that such committee shall be comprised solely of directors of Pzena Investment Management, Inc. who are (a) "non-employee directors" under Rule 16b-3 of the Securities Exchange Act of 1934, as amended from time to time, and as now or hereafter construed, interpreted and applied by regulations, rulings and cases, (b) "outside directors" under Code Section 162(m) and (c) "independent directors" pursuant to New York Stock Exchange requirements. For any period during which no such committee is in existence, "Committee" shall mean the Managing Member and



all authority and responsibility assigned to the Committee under the Plan shall be exercised, if at all, by the Managing Member.

        3.8.   Company shall mean Pzena Investment Management, LLC, a Delaware limited liability company, and its subsidiaries.

        3.9.   Compensation shall mean the total remuneration paid by the Company to an Eligible Individual for services provided to the Company in respect of a Fiscal Year, including, without limitation, base salary, guaranteed minimum base payments, Bonus Awards, commissions, sick pay and short-term disability pay (to the extent paid from payroll), and amounts contributed by or on behalf of the Eligible Individual to any retirement plan or simplified employee plan of the Company. Notwithstanding the foregoing, an Eligible Individual's Compensation shall exclude short-term disability pay not paid from payroll, long-term disability pay, severance pay, welfare and fringe benefits (whether or not includible in the Eligible Individual's gross income), expense allowances and reimbursements (whether or not includible in the Eligible Individual's gross income), awards or income under the Equity Incentive Plan (other than Restricted Share Units issued under the Equity Incentive Plan pursuant to the terms of this Plan), and, with respect to an Eligible Individual who is a member of the Company, the Eligible Individual's distributive share, as a member, of the net income of the Company after payment of all compensation and other expenses of the Company. Notwithstanding the foregoing, an Eligible Individual's Compensation shall not include any amount paid or payable from an Account to such Eligible Individual during a Fiscal Year.

        3.10.   Confidential Information shall have the meaning set forth in the Operating Agreement.

        3.11.   Distribution Equivalent shall mean a right, granted pursuant to the Equity Incentive Plan, to be paid an amount determined with respect to the distributions declared and paid with respect to outstanding Restricted Share Units.

        3.12.   Eligible Individual shall have the meaning set forth in Section 4.1.

        3.13.   Equity Incentive Plan shall mean the Pzena Investment Management, LLC 2006 Equity Incentive Plan, as it may be amended and in effect from time to time.

        3.14.   FICA Amount shall have the meaning set forth in Section 11.3(b).

        3.15.   Fiscal Year shall mean the fiscal year of Pzena Investment Management, LLC, which is the calendar year.

        3.16.   Good Reason shall mean the occurrence of any of the following events without either (i) the Participant's prior written consent; or (ii) full cure within 30 days after the Participant gives written notice to the Company describing the event in reasonable detail and requesting cure; provided that the Participant delivers such written notice to the Company within 30 days of the Participant's knowledge of the occurrence or existence of the event or circumstance the Participant believes constitutes Good Reason:

        3.17.   Investment Options shall have the meaning set forth in Section 6.2.

        3.18.   Investment Advisory Services shall mean any services that involve (1) the management of an investment account or fund (or portions thereof or a group of investment accounts or funds), (2) the giving of advice with respect to the investment and/or reinvestment of assets or funds (or any group of

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assets or funds), or (3) otherwise acting as an "investment adviser" within the meaning of the Investment Advisers Act of 1940, as amended (whether or not required to be registered under such act), and performing activities related or incidental thereto, provided that "Investment Advisory Services" shall exclude any service in respect of which no compensation or economic benefit is provided directly or indirectly to any Person in respect of such service.

        3.19.   Managing Member shall have the meaning set forth in the Operating Agreement.

        3.20.   Market Value shall have the same meaning as Fair Market Value set forth in the Equity Incentive Plan.

        3.21.   Operating Agreement shall mean the Company's Amended and Restated Operating Agreement, Further Amended and Restated as of October 30, 2007, as in effect from time to time.

        3.22.   Participant shall mean a current or former employee or member of the Company for whom an Account is maintained pursuant to this Plan or who holds any Restricted Share Units pursuant to the Plan.

        3.23.   Person shall mean any individual, partnership (whether general or limited), joint venture, corporation, limited liability company, trust, incorporated organization, or governmental or regulatory authority or other entity.

        3.24.   Plan shall mean this Pzena Investment Management, LLC Amended and Restated Bonus Plan, as it may be amended and in effect from time to time.

        3.25.   Restricted Amount shall have the meaning set forth in Section 5.2.

        3.26.   Restricted Share Units shall mean a right granted to a Participant under Section 6.4 of the Equity Incentive Plan to receive Units or cash at the end of a specified period.

        3.27.   Restriction Period shall have the meaning set forth in the Equity Incentive Plan.

        3.28.   Separation from Service shall mean a Participant's "separation from service," as defined in Section 409A of the Code and applicable guidance thereunder, from the Company.

        3.29.   Service means employment with the Company, or the provision of services to the Company as a member.

        3.30.   Unit shall mean a "Class B Unit" in Pzena Investment Management, LLC, as defined in the Operating Agreement.

        3.31.   Valuation Date shall have the meaning set forth in Section 6.3.

        3.32.   Vesting Date shall mean each date upon which a portion of a Participant's Account vests and/or upon which the Restriction Period ends with respect to all or a portion of a Participant's Restricted Share Units, in accordance with Section 5.6(a).

4.     Bonus Awards

        4.1.     Grant of Bonus Awards .    No later than the last day of a Fiscal Year, the Committee shall designate, from among the employees and members of the Company who provide personal services to the Company, those individuals eligible for a Bonus Award for such Fiscal Year (each, an "Eligible Individual") and shall determine and specify for each Eligible Individual the amount of the Bonus Award that shall be awarded to such Eligible Individual for such Fiscal Year. In designating the Eligible Individuals for a Fiscal Year and in determining the amount of the Bonus Awards to be granted, the Committee shall take into account any subjective or objective factors that it may in its sole discretion deem relevant, including, without limitation, the performance of the Company, the Eligible Individual or the business unit within the Company to which the Eligible Individual provides services. The

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Committee may designate as an Eligible Individual an employee or member of the Company who terminates his association with the Company during a Fiscal Year.

        4.2.     Time of Payment .    Unless deferred under Section 5, a Bonus Award shall be paid to the Participant in one lump sum in cash in the calendar year following the Fiscal Year in which it was earned, but no later than the March 15th of such calendar year (the "Allocation Date").

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5.     Mandatory Deferral of Restricted Amounts

        5.1.     Application of Section to Eligible Individuals .    The provisions of this Section 5 shall apply to each Eligible Individual who is allocated a Bonus Award for a Fiscal Year and whose Compensation for such Fiscal Year (including such Bonus Award) exceeds $600,000.

        5.2.     Restricted Amount .    An Eligible Individual's "Restricted Amount" is that portion of the Eligible Individual's Bonus Award (but no more than 100% of such Bonus Award) for such Fiscal Year which is equal to:

        5.3.     Member Participants .    Each Eligible Individual who is a member of Pzena Investment Management, LLC and who is or may be entitled to receive a Bonus Award for a Fiscal Year may elect, in accordance with procedures prescribed by the Committee, to have any Restricted Amount of such Bonus Award credited to an Account in his name in accordance with Section 6.1, to receive the Restricted Amount in the form of Restricted Share Units in accordance with Section 5.5, or in a combination of the two. In the absence of an election, the entire Restricted Amount shall be credited to an Account in the name of the Eligible Individual in accordance with Section 6.1.

        5.4.     Other Participants .    Each Eligible Individual who is an employee of the Company, who is not a member of Pzena Investment Management, LLC and who is entitled to receive a Restricted Amount in any Fiscal Year shall have the entire Restricted Amount credited to an Account in his name in accordance with Section 6.1.

        5.5.     Restricted Share Units.     

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        5.6.     Vesting.     

Vesting Date
(Time Elapsed Since Last Day
of Fiscal Year For Which
Bonus Earned)
  Percentage
Vesting on Vesting Date
 
1 year     25 %
2 years     50 %
3 years     75 %
4 years     100 %

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6.     Accounts

        6.1.     Establishment of Accounts .    The Company shall establish and maintain an account (an "Account") for each Eligible Individual who is entitled to receive a Restricted Amount in any Fiscal Year, provided that an Account shall only be established for an Eligible Individual who is a member of Pzena Investment Management, LLC if he does not receive all of his Restricted Amount for the Fiscal Year in the form of Restricted Share Units. A separate Account shall be established for each such Participant for each Fiscal Year. A Participant's Account shall be credited with an initial amount equal to the Restricted Amount for such Fiscal Year (or, in the case of a Participant who is a member of Pzena Investment Management, LLC, that part of the Restricted Amount that is not received in the form of Restricted Share Units) effective as of the applicable Allocation Date.

        6.2.     Investment of Accounts .    The Committee may from time to time designate investment options in which a Participant's Accounts may be notionally invested (the "Investment Options"), which may include, without limitation, funds or groups of funds to which the Company acts as investment adviser or sub-adviser and designated stock or bond indices. Upon or prior to the establishment of an Account and in accordance with procedures established by the Committee, a Participant shall specify how such Account is to be notionally invested among the Investment Options. At such intervals and in accordance with such procedures as the Committee may prescribe, a Participant may reallocate the notional investment of his Accounts among the available Investment Options. Nothing in this Plan, however, will require the Company to invest any amounts in such Investment Options or otherwise.

        6.3.     Allocation of Income and Losses .    As of the last day of each month or such other dates as the Committee shall determine (each, a "Valuation Date"), income, gains and losses shall be credited or debited, as appropriate, to a Participant's Account as if the Account balance had been invested in the Investment Options in which it is notionally invested.

        6.4.     Payments from Accounts and Settlement of Restricted Share Units.     

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7.     Administration

        7.1.     Power and Authority of the Committee .    The Plan shall be administered by the Committee, which shall have the full discretionary power and authority to:

        7.2.     Determinations of Committee Final and Binding .    All determinations and interpretations by the Committee in carrying out and administering the Plan shall be made in the Committee's sole discretion and shall be final, conclusive and binding for all purposes and upon all persons.

        7.3.     Indemnification of Committee .    The Company agrees to indemnify and hold harmless each individual person who serves as a member of the Committee to the fullest extent permitted by law for all acts done in good faith and without gross negligence including defense of all litigation, including legal fees. The Company may purchase insurance to further protect each member of the Committee.

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8.     Amendment and Termination

        Pzena Investment Management, LLC may amend, suspend or terminate this Plan at any time in writing, and each such amendment, suspension or termination shall be binding upon its subsidiaries, all Participants and all other persons. Notwithstanding the foregoing, no amendment or termination of this Plan shall adversely affect any then existing deferred amounts in any Account or any rights with respect to such amounts under this Plan; provided, however, that, upon termination of the Plan, the Company may accelerate the time of payment of all or any part of the Accounts in accordance with the requirements of Section 409A of the Code and the guidance thereunder.

9.     Unfunded Status of Accounts

        The Accounts established under this Plan shall be unfunded. The right of any Participant to receive future payments from any Account shall be an unsecured claim against the general assets of the Company, and no Participant or any other person shall have any interest in any specific asset or assets of the Company by reason of any Account hereunder, nor any rights to receive distribution of any of the Accounts except as and to the extent expressly provided hereunder. With respect to the payment of amounts held under the Accounts, the Participants have the status of unsecured general creditors of the Company. The Company shall not be required to purchase, hold or dispose of any investments pursuant to this Plan; however, if in order to cover its obligations hereunder the Company elects to purchase any investments, the same shall continue for all purposes to be a part of the general assets and property of the Company, subject to the claims of its general creditors and shall not be deemed to create a trust, and no person other than the Company shall by virtue of the provisions of this Plan have any interest in such assets other than an interest as a general creditor.

10.   Effective Date

        This Plan shall be effective January 1, 2007 and shall apply to Bonus Awards earned in Fiscal Years beginning on and after January 1, 2007.

11.   Miscellaneous

        11.1.     Assignability .    No right or interest of a Participant under this Plan to any amounts in a Participant's Account or to any Bonus Award shall be subject to alienation, assignment, transfer, pledge or encumbrance of any kind; provided, however, that nothing in this Section 11.1 shall prevent transfer by will or by the applicable laws of descent and distribution. No loans will be issued by the Plan against a Participant's Account.

        11.2.     No Guarantee of Employment .    The Plan shall not be construed to give any Participant the right to be retained in the employment of the Company or to interfere with the right of the Company to terminate the employment of any person at any time.

        11.3.     Taxation of Accounts and Compliance with Section 409A of the Code.     

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        11.4.     Withholding .    Any payment or other distribution of benefits under the Plan may be reduced by any amount (including employment taxes) required to be withheld by the Company under any applicable law, rule, regulation, order or other requirement of any governmental authority. In addition, the Company has full authority to withhold any taxes (including employment taxes) applicable to amounts deferred hereunder from other compensation owing to any Participant that is not being deferred hereunder. If a Participant becomes entitled to a distribution under the Plan, and if at such time such Participant has outstanding any debt, obligation or other liability representing an amount owing to the Company, then the Company may offset such amount against the amount of benefits otherwise distributable to the Participant under this Plan to the extent permitted by applicable law.

        11.5.     Governing Law .    The Plan shall be construed, administered and enforced in accordance with the laws of the State of New York.

        11.6.     Gender and Number .    Where the context admits, words in the masculine gender shall include the feminine and the neuter genders, the singular shall include the plural, and the plural shall include the singular.

        11.7.     Headings .    The headings of Sections are included solely for convenience of reference and are not intended in any way to modify or otherwise to affect the text of the Plan.

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PZENA INVESTMENT MANAGEMENT, LLC AMENDED AND RESTATED BONUS PLAN Effective as of October 30, 2007 Amended as of October 21, 2008
TABLE OF CONTENTS
PZENA INVESTMENT MANAGEMENT, LLC AMENDED AND RESTATED BONUS PLAN
Effective as of October 30, 2007

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Exhibit 31.1


CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO EXCHANGE ACT RULE 13a-14(a)/15d-14(a)

I, Richard S. Pzena, certify that:

        1.     I have reviewed this quarterly report on Form 10-Q of Pzena Investment Management, Inc.;

        2.     Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

        3.     Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

        4.     The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

        5.     The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors:

Dated: November 13, 2008   /s/ RICHARD S. PZENA

Name: Richard S. Pzena
Title:
Chief Executive Officer
   



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CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO EXCHANGE ACT RULE 13a-14(a)/15d-14(a)

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Exhibit 31.2


CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO EXCHANGE ACT RULE 13a-14(a)/15d-14(a)

I, Wayne A. Palladino, certify that:

        1.     I have reviewed this quarterly report on Form 10-Q of Pzena Investment Management, Inc.;

        2.     Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

        3.     Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

        4.     The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

        5.     The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors:

Dated: November 13, 2008   /s/ WAYNE A. PALLADINO

Name: Wayne A. Palladino
Title:
Chief Financial Officer
   



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CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO EXCHANGE ACT RULE 13a-14(a)/15d-14(a)

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Exhibit 32.1


Certification of Chief Executive Officer pursuant to
18 U.S.C. Section 1350,
as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002

        In connection with the Quarterly Report on Form 10-Q of Pzena Investment Management, Inc. (the "Company") for the quarter ending September 30, 2008, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), Richard S. Pzena, as Chief Executive Officer of the Company certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:


Dated: November 13, 2008   /s/ RICHARD S. PZENA

Name: Richard S. Pzena
Title:
Chief Executive Officer
   



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Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

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Exhibit 32.2


Certification of Chief Financial Officer pursuant to
18 U.S.C. Section 1350,
as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002

        In connection with the Quarterly Report on Form 10-Q of Pzena Investment Management, Inc. (the "Company") for the quarter ending September 30, 2008, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), Wayne A. Palladino, as Chief Financial Officer of the Company certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:


Dated: November 13, 2008   /s/ WAYNE A. PALLADINO

Name: Wayne A. Palladino
Title:
Chief Financial Officer
   



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Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002