Exhibit 99.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment"), dated as
of February 11, 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 (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, 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 as follows:
(a) The existing definition of "Applicable Rate" in Section 1.01 is
amended by deleting "1.00%" in clause (b) and inserting "1.50%"
in lieu thereof.
(b) The existing definition of "Assets Under Management" in Section
1.01 is deleted in its entirety and the following is inserted in
lieu thereof:
"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.
(c) The existing definition of "Revolving Credit Facility" in Section
1.01 is amended by deleting "US$20,000,000" in the fourth line
and inserting "US$5,000,000" in lieu thereof.
(d) The following definitions are added to Section 1.01 in the
appropriate alphabetical locations therein:
"Amortization Payment Date" means, with respect to any
Amortization Requirement Period, (a)(i) the last Business Day of
the month in which such Amortization Requirement Period
commenced, or (ii) if an amortization payment has been made
pursuant to Section 2.05(d) in the immediately preceding three
(3) calendar month period, the last Business Day of the month
that ends on the three-month anniversary of such payment, and (b)
the last Business Day of each month that ends on every
three-month anniversary of the date in clause (a).
Notwithstanding the foregoing, if an Amortization Requirement
Period commences within the last five days of a calendar month,
the Amortization Payment Date described in clause (a)(i) will be
extended to the fifth day following the date on which such
Amortization Requirement Period commences, but in such case any
subsequent Amortization Payment Dates calculated pursuant to
clause (a)(ii) or (b) of this definition shall be calculated from
the last Business Day of the calendar month in which such
Amortization Requirement Period commenced rather than the
extended Amortization Payment Date.
"Amortization Requirement Period" means a period of time
commencing on any date that Assets Under Management are less than
US$20,000,000,000 and ending on the date thereafter that Assets
Under Management exceed US$21,500,000,000.
"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.
"Consolidated Capital Expenditures" shall mean for any
period, for the Borrower and its subsidiaries on a consolidated
basis, the aggregate of all expenditures (whether paid in cash or
other consideration or accrued as a liability and including that
portion of Capital Lease Obligations which is capitalized on the
consolidated balance sheet of the Borrower and its subsidiaries)
during such period for the acquisition or leasing (pursuant to a
Capital Lease) of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and
improvements during such period) that, in conformity with GAAP,
are included in "additions to property, plant or equipment" or
comparable items reflected in the consolidated statement of cash
flows of the Borrower and its subsidiaries; provided that
Consolidated Capital Expenditures shall not include any
expenditures which are contractually required to be, and are,
reimbursed to the Borrower and its subsidiaries in cash by a
third party (including landlords) during such period of
calculation.
2
"Consolidated Cash Interest Charges" means, for any period,
Consolidated Interest Charges, but excluding to the extent
otherwise included therein, (i) interest expense to the extent
not payable in cash (e.g., interest or dividends on securities
which must (or may, at the election of such Person or any of its
subsidiaries) be paid in additional securities, imputed interest,
amortization of original issue discount and/or by an addition to
the accreted value thereof), (ii) non-cash or deferred financing
costs, and (iii) any non-cash amortization of discount or write
down of deferred financing fees.
"Excess Cash Flow" means, for any period and without
duplication, the positive remainder (if any) of (a) Consolidated
EBITDA for such period, minus (b) Consolidated Cash Interest
Charges paid during such period, minus (c) federal, state, local
and foreign income taxes (including franchise and similar taxes
in the nature of income taxes) paid and payable in cash for such
period, minus (d) the first US$500,000 of Consolidated Capital
Expenditures during such period, minus (e) the first US$1,000,000
of New Product Investments during such period, minus (f) the
aggregate amount of any principal prepayments of the Term Loan
pursuant to Sections 2.05(a) and 2.05(d) during such period,
minus (g) Restricted Payments permitted by Section 7.05(e) and
actually paid by in cash during such period, minus (h)
extraordinary losses, to the extent excluded from Consolidated
Net Income; minus (i) amounts added back to Consolidated EBITDA
pursuant to clauses (a)(iv) through (viii) of the definition
thereof, plus (j) amounts subtracted from Consolidated EBITDA
pursuant to clauses (b)(i) through (iii) of the definition
thereof.
"New Product Investments" means expenditures on investments
in new products.
(e) The following new clause (c) is added to Section 2.05 in the
appropriate position therein:
(c) Excess Cash Flow Recapture. If on any Business Day
during any fiscal quarter Assets Under Management are less than
US$17,500,000,000, not later than three (3) days after the date
that financial statements are required to be delivered pursuant
to Section 6.01(b) and the related Compliance Certificate has
been delivered pursuant to Section 6.02(b), the Borrower shall
prepay the Term Loan in an aggregate amount equal to the product
of (x) fifty percent (50%) of Excess Cash Flow for such fiscal
quarter multiplied by (y) a fraction, the numerator of which is
the number of Business Days in such fiscal quarter on which
Assets Under Management are less than US$17,500,000,000 and the
denominator of which is the total number of Business Days in such
fiscal quarter.
At the request of the Administrative Agent, a payment made
pursuant to this Section 2.05(c) shall be accompanied by a report
(in form and substance reasonably acceptable to the
Administrative Agent) detailing Assets Under Management on each
Business Day during such fiscal quarter.
3
(f) The following new clause (d) is added to Section 2.05 in the
appropriate position therein:
(d) The Borrower shall repay to the Term Loan Lenders on
each Amortization Payment Date occurring during an Amortization
Requirement Period, a principal amount of the Term Loan in the
following amount:
(i) if Assets Under Management on the Amortization
Payment Date are greater than US$18,000,000,000 on such
Amortization Payment Date, US$3,000,000; and
(ii) if Assets Under Management on the Amortization
Payment Date are less than US$18,000,000,000 on such
Amortization Payment Date, US$5,000,000.
Each such payment made pursuant to this Section 2.05(d) shall be
accompanied by a report (in form and substance reasonably
acceptable to the Administrative Agent) detailing Assets Under
Management on such Amortization Payment Date.
(g) The following new clause (iii) is added to Section 6.01(b) in the
appropriate position therein:
(iii) by Friday of each week, a report (in form and
substance reasonably acceptable to the Administrative Agent)
detailing Assets Under Management from the first day of the then
current fiscal quarter through Friday of the previous week.
(h) Section 6.03 is deleted in its entirety and the following is
inserted in lieu thereof:
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) of the commencement of an Amortization Requirement
Period.
4
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.
(i) Section 7.10(a) is amended by deleting "US$20,000,000,000" in the
second line and inserting "US$15,000,000,000"in lieu thereof.
(j) Section 7.10(b) is amended by deleting "US$60,000,000" in the
second line and inserting "US$40,000,000"in lieu thereof.
(k) The existing Schedule 2.01 to the Credit Agreement is deleted in
its entirety and Schedule 2.01 attached hereto as Annex I is
inserted in lieu thereof.
(l) The existing Exhibit C to the Credit Agreement is deleted in its
entirety and Exhibit C attached hereto as Annex II is inserted in
lieu thereof.
2. 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:
(a) the Administrative Agent shall have received one or more
counterparts of this Amendment, duly executed by the Borrower,
each of the Guarantors, the Administrative Agent, and each of the
Lenders; and
(b) if Total Revolving Outstandings exceed US$5,000,000, the Borrower
shall prepay Revolving Loans and/or Cash Collateralize the L/C
Obligations in an amount sufficient to reduce such Outstanding
Amounts as of the date hereof to an amount not to exceed
US$5,000,000.
3. 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.
4. 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:
(a) The representations and warranties contained in Article V and the
other Loan Documents are true and correct in all material
respects on and as of the date hereof, except to the extent that
such representations and warranties specifically refer to an
earlier date, in which case they are true and correct in all
material respects as of such earlier date, and except that the
representations and warranties contained in subsections (a) and
(b) of Section 5.05 of the Credit Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 6.01 of the Credit
Agreement;
5
(b) The Persons appearing as Guarantors on the signature pages to
this Agreement constitute all Persons who are required to be
Guarantors pursuant to the terms of the Credit Agreement and the
other Loan Documents, including without limitation all Persons
who became Subsidiaries or were otherwise required to become
Guarantors after the Closing Date, and each of such Persons has
become and remains a party to a Guaranty as a Guarantor;
(c) This Agreement has been duly authorized, executed and delivered
by the Borrower and the Guarantors party hereto and constitutes a
legal, valid and binding obligation of such parties, except as
may be limited by general principles of equity or by the effect
of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally;
and
(d) No Default or Event of Default has occurred and is continuing.
5. 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.
6. 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.
7. 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.
6
8. 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.
9. Governing Law. This Amendment shall in all respects be governed
by, and construed in accordance with, the laws of the State of New York.
10. 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.
11. References. All references in any of the Loan Documents to the
"Credit Agreement" shall mean the Credit Agreement, as amended hereby.
12. 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.
[Signature pages follow.]
7
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/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
GUARANTOR:
PZENA ALTERNATIVE INVESTMENTS, LLC
By: /s/ Xxxxxxxx Xxxx
-----------------
Name: Xxxxxxxx Xxxx
Title: President
Signature Page to Amendment No. 1
ADMINISTRATIVE AGENT:
---------------------
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Signature Page to Amendment No. 1
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Signature Page to Amendment No. 1
Annex I
-------
SCHEDULE 2.01
COMMITMENTS AND
PRO RATA SHARES
Revolving Credit Facility
-------------------------
Revolving Credit Pro Rata
Lender Commitment Revolving Share
Bank of America, N.A. US$ 5,000,000.00 100.000000000%
Total US$ 5,000,000.00 100.000000000%
Term Loan Facility
------------------
Term Loan Pro Rata
Lender Commitment Term Share
Bank of America, N.A. US$ 60,000,000.00 100.000000000%
Total US$ 60,000,000.00 100.000000000%
Schedule 2.01
Annex II
--------
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: __________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of July
23, 2007 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Pzena Investment Management, LLC, a Delaware
limited liability company (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the of the Borrower, and that, as such, he/she is
authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Borrower, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. The Borrower has delivered the audited financial statements
required by Section [6.01(a)(i)/6.01(b)(i)] of the Agreement for the fiscal year
of the Borrower ended as of the above date, together with the report and opinion
of an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. The Borrower has delivered the unaudited financial statements
required by [6.01(a)(ii)/6.01(b)(ii)] of the Agreement for the fiscal quarter of
the Borrower ended as of the above date. Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Borrower and its subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence
of footnotes.
2. The undersigned has reviewed and is familiar with the terms of
the Agreement and has made, or has caused to be made under his/her supervision,
a detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by such financial statements.
3. A review of the activities of the Borrower during such fiscal
period has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed the covenants and conditions under the Loan Documents, and
C-1
Form of Compliance Certificate
[select one:]
[to the best knowledge of the undersigned during such fiscal period no
Default has occurred and is continuing.]
--or--
[to the best knowledge of the undersigned, during such fiscal period
the following is a list of each such Default and its nature and status:]
4. The representations and warranties of the Borrower contained in
Article V of the Agreement, and any representations and warranties of any Loan
Party that are contained in any document furnished at any time under or in
connection with the Loan Documents, are true and correct on in all material
respects and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier date,
and except that for purposes of this Compliance Certificate, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 of the
Agreement shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Agreement,
including the statements in connection with which this Compliance Certificate is
delivered.
5. The financial covenant analyses and information set forth on
Schedules 1 and 2 attached hereto are true and accurate on and as of the date of
this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_______________, _____.
PZENA INVESTMENT MANAGEMENT, LLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
C-2
Form of Compliance Certificate
For the Quarter/Year ended ___________________("Statement Date")
--------------
SCHEDULE 1
to the Compliance Certificate
(US$ in 000's)
I. Section 7.10(a) - Assets Under Management.
A. Assets Under Management as of the Statement Date: US$
------------
B. Minimum required Assets Under Management: US$ 15,000,000
------------
C. Excess (deficient) for covenant compliance
(Line I.A - I.B): US$
------------
II. Section 7.10 (b) - Consolidated EBITDA.
A. Consolidated EBITDA for four consecutive fiscal
quarters ending on above date ("Subject Period"):
1. Consolidated Net Income for Subject Period: US$
------------
2. Consolidated Interest Charges for Subject
Period: US$
------------
3. Provision for Federal, state, local and
foreign income taxes for Subject Period: US$
------------
4. Depreciation and amortization expenses for
Subject Period: US$
------------
5. Other non-recurring non-cash items reducing
Consolidated Net Income for Subject Period: US$
------------
6. Compensation expenses reducing Consolidated
Net Income which do not represent a cash
payment in Subject Period or any future
period: US$
------------
7. Compensation expenses associated with
distributions on membership units for
Subject Period: US$
------------
8. Interest on Mandatorily Redeemable Units
for Subject Period (as set forth in the
Borrower's income statement): US$
------------
9. Equity in the losses of Affiliates for
Subject Period: US$
------------
10. Federal, state, local and foreign income
tax credits of the Borrower and its
Subsidiaries for Subject Period: US$
------------
11. All non-recurring, non-cash items
increasing Consolidated Net Income for
Subject Period: US$
------------
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Form of Compliance Certificate
12. Equity in the earnings of Affiliates for
Subject Period: US$
------------
13. Consolidated EBITDA (Lines II.A.1 + 2 + 3
+ 4 + 5 + 6 + 7 + 8 + 9 - 10 - 11- 12): US$
------------
B. Minimum required Consolidated EBITDA for Subject
Period: US$ 40,000
------------
C. Excess (deficient) for covenant compliance
(Line II.A.13 - II.B): US$
------------
III. Section 2.05(c) - Excess Cash Flow for the fiscal
quarter ended _________ __, ____.
A. Consolidated EBITDA for the fiscal quarter ending
on above date ("Fiscal Quarter"):
1. Consolidated Net Income for Fiscal Quarter: US$
------------
2. Consolidated Interest Charges for Fiscal
Quarter: US$
------------
3. Provision for Federal, state, local and
foreign income taxes for Fiscal Quarter: US$
------------
4. Depreciation and amortization expenses for
Fiscal Quarter: US$
------------
5. Other non-recurring non-cash items reducing
Consolidated Net Income for Fiscal Quarter: US$
------------
6. Compensation expenses reducing Consolidated
Net Income which do not represent a cash
payment in Fiscal Quarter or any future
period: US$
------------
7. Compensation expenses associated with
distributions on membership units for Fiscal
Quarter: US$
------------
8. Interest on Mandatorily Redeemable Units for
Fiscal Quarter (as set forth in the
Borrower's income statement): US$
------------
9. Equity in the losses of Affiliates for
Fiscal Quarter: US$
------------
10. Federal, state, local and foreign income tax
credits of the Borrower and its Subsidiaries
for Fiscal Quarter: US$
------------
11. All non-recurring, non-cash items increasing
Consolidated Net Income for Fiscal Quarter: US$
------------
12. Equity in the earnings of Affiliates for
Fiscal Quarter: US$
------------
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Form of Compliance Certificate
13. Consolidated EBITDA (Lines III.A.1 + 2 + 3
+ 4 + 5 + 6 + 7 + 8 + 9 - 10 - 11- 12): US$
------------
B. Consolidated Cash Interest Charges for Fiscal
Quarter: US$
------------
C. Federal, state, local and foreign income taxes
paid and payable in cash for Fiscal Quarter: US$
------------
D. Consolidated Capital Expenditures for Fiscal
Quarter: US$
------------
E. New Product Investments for Fiscal Quarter: US$
------------
F. Prepayments of the Term Loan pursuant to Sections
2.05(a) and 2.05(d) during Fiscal Quarter: US$
------------
G. Restricted Payments permitted by Section 7.05(e)
paid in cash during Fiscal Quarter: US$
------------
H. Extraordinary losses during Fiscal Quarter: US$
------------
I. Amounts added back to Consolidated EBITDA pursuant
to clauses (a)(iv) through (viii) for Fiscal
Quarter (Lines III.A.5 + 6 + 7 + 8 + 9): US$
------------
J. Amounts subtracted from Consolidated EBITDA
pursuant to clauses (b)(i) through (iii) for
Fiscal Quarter (Lines III.A.10 + 11 +12): US$
------------
K. Excess Cash Flow for Fiscal Quarter (Lines
III.A.13 - III.B - III.C - III.D - III.E - III.F
- III.G - III.H - III.I + III.J): US$
------------
Prepayment required by Section 2.05(c):
Excess Cash Flow (Line III.K) x (.50 x (number of
Business Days in Fiscal Quarter on which Assets
Under Management are less than US$17,500,000,000 /
total number of Business Days in Fiscal Quarter): US$
------------
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Form of Compliance Certificate
For the Quarter/Year ended ___________________("Statement Date")
--------------
SCHEDULE 2
to the Compliance Certificate
(US$ in 000's)
Consolidated EBITDA
(in accordance with the definition of Consolidated EBITDA
as set forth in the Agreement)
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
Quarter Quarter Quarter Quarter Twelve Months
Consolidated Ended Ended Ended Ended Ended
EBITDA(1) __________ __________ __________ __________ __________
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
Consolidated Net Income
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
+ Consolidated Interest
Charges
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
+ Provision for Federal,
state, local and
foreign income taxes
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
+ Depreciation and
amortization expenses
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
+ Other non-recurring
non-cash items
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
+ Compensation expenses
which do not represent
a cash payment in
Subject Period or any
future period
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
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Form of Compliance Certificate
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
+ Compensation expenses
associated with
distributions on
membership units
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
+ Interest on Mandatorily
Redeemable Units (as
set forth in the
Borrower's income
statement)
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
+ Equity in the losses of
Affiliates
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
- Federal, state, local
and foreign income tax
credits
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
- All non-recurring,
non-cash items
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
- Equity in the earnings
of Affiliates
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
= Consolidated EBITDA
---------------------------- ----------------- ----------------- ----------------- ----------------- -----------------
(1) This worksheet is not intended to be a complete description of all the
items relevant to a calculation of Consolidated EBITDA; therefore in any
calculation of Consolidated EBITDA, the definition of Consolidated EBITDA
should be consulted.
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Form of Compliance Certificate
