Exhibit 10.11


 


AMENDMENT NO. 1 AND CONSENT


 


AMENDMENT NO. 1 AND CONSENT
(this “Amendment No. 1 and Consent”) dated as of August 14,
2009 among KKR PEI INVESTMENTS, L.P. (the “Borrower”), the GUARANTORS
party hereto (the “Guarantors” and, together with the Borrower, the “Obligors”),
the Lenders executing this Amendment No. 1 and Consent, each of which is a
party to the Credit Agreement referred to below, and CITIBANK,
N.A., as Administrative Agent (the “Administrative Agent”).


 


The Obligors, the Lenders
party thereto (including the Lenders executing this Amendment No. 1 and
Consent) and the Administrative Agent are parties to a Credit Agreement dated
as of June 11, 2007 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”), providing, subject to the terms
and conditions thereof, for extensions of credit to be made by said lenders to
the Borrower thereunder.


 


The
parties hereto wish now to amend the Credit Agreement in certain respects and,
accordingly, the parties hereto hereby agree as follows:


 


Section 1. 
Definitions.  Except as
otherwise defined in this Amendment, terms defined in the Credit Agreement are
used herein as defined therein.


 


Section 2. 
Amendments.  Subject to the
satisfaction of the conditions precedent specified in Section 5 below, the
Credit Agreement shall be amended as follows:


 


2.01.  References Generally.  References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to “this Agreement” (and
indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) shall
be deemed to be references to the Credit Agreement as amended hereby.


 


2.02.        Defined
Terms.  Section 1.01 of the
Credit Agreement is hereby amended by (i) restating the following
definitions (to the extent such definitions are already included in said Section 1.01)
to read as follows and (ii) adding the following definitions in the
appropriate alphabetical location (to the extent such definitions are not
already included in said Section 1.01):


 


“Affiliate Lender”
means any Permitted Affiliate Assignee that becomes a Lender in accordance with
Sections 9.06 and 9.18.


 


“Affiliate Lender Pledge
Agreement” means a pledge agreement entered into by an Affiliate Lender and
the Administrative Agent, in form and substance reasonably acceptable to the
Administrative Agent.


 


“Amendment No. 1 and Consent
Effective Date” shall mean the date that the amendments contemplated by the
Amendment No. 1 and Consent dated as of August 14, 2009 related
hereto become effective.


 


“Assignment Date” has
the meaning specified in Section 9.06(b).


 

















 


“Cash Collateralize”
means, in respect of an obligation, to provide and pledge cash collateral in
Dollars, in a cash collateral
account established at Citibank, N.A. (or an Affiliate thereof), which account
shall be subject to a valid first priority perfected Lien pursuant to an
Affiliate Lender Pledge Agreement and under the control (as defined in Section 9-104
of the NYUCC) of the Administrative Agent.


 


“Defaulting Lender” means, at any
time, a Lender as to which the Administrative Agent has notified the Borrower
that (i) such Lender has failed for three or more Business Days to comply
with its obligations under this Agreement to make a Loan, make a payment to the
relevant Issuing Lender in respect of an L/C Payment and/or make a payment to
the Swing Line Lender in respect of a Swing Line Loan (each a “funding
obligation”), unless the requirement to make such payment is the subject of
a good faith dispute, (ii) such Lender has, for three or more Business
Days, failed to confirm in writing to the Administrative Agent, in response to
a written request of the Administrative Agent, that it will comply with a
funding obligation, provided that any such Lender shall cease to be a
Defaulting Lender under this clause (ii) upon receipt of such confirmation
by the Administrative Agent, or (iii) a Lender Insolvency Event has
occurred and is continuing with respect to such Lender.  Any determination that a Lender is a
Defaulting Lender under clauses (i) through (iii) above will be made
by the Administrative Agent in its sole discretion acting in good faith.  The Administrative Agent will promptly send
to all parties hereto a copy of any notice to the Borrower provided for in this
definition.


 


“Eligible Assignee” means (a) a
Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, (d) a
Permitted Affiliate Assignee and (e) any other Person (other than a
natural person) approved by the Administrative Agent, the Swing Line
Lender and each Issuing Lender and, unless an Event of Default of the kind
referred to in Section 7.01(a), 7.01(b), 7.01(g) or 7.01(h) has
occurred and is continuing, by the Borrower (each such approval not to be
unreasonably withheld or delayed); provided, that notwithstanding the
foregoing, “Eligible Assignee” shall not include the Borrower, any of the
Borrower’s Subsidiaries or any of the Borrower’s Affiliates (other than
Permitted Affiliate Assignees).


 


“Issuing
Lender” means any Lender from time to time designated as an Issuing Lender
in a writing signed by such Lender, the Borrower and the Administrative Agent
(such Lenders being collectively referred to herein as the “Issuing Lender”
unless the context otherwise requires).


 


“Lender
Insolvency Event” means that (i) a Lender is insolvent, or is
generally unable to pay its debts as they become due, or admits in writing its
inability to pay its debts as they become due, or makes a general assignment
for the benefit of its creditors, or (ii) a Lender is the subject of a
bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a
receiver, trustee, conservator, intervenor or sequestrator or the like has been
appointed for such Lender, or such Lender has taken any action in furtherance
of or indicating its consent to or acquiescence in any such proceeding or
appointment; provided that a Lender shall not become a Defaulting Lender
solely as a result of the acquisition or maintenance of an ownership interest
in such Lender or the exercise of control over a Lender by a Governmental
Authority.


 


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“Loan Documents” means, collectively,
this Agreement, the Notes, the Security Documents, the Affiliate Lender Pledge
Agreements and the Fee Letter.


 


“Permitted Affiliate Assignee” means
any Affiliate of the Borrower (other than a Subsidiary of the Borrower)
approved by the Administrative Agent and, unless an Event of Default of the
kind referred to in Section 7.01(a), 7.01(b), 7.01(g) or 7.01(h) has
occurred and is continuing, by the Borrower (each such approval not to be
unreasonably withheld or delayed).


 


“Secured Creditors”
has the meaning assigned to such term in the Guarantee and Security Agreement.


 


“Secured Obligations”
has the meaning assigned to such term in the Guarantee and Security Agreement.


 


“Security Documents” means the
Guarantee and Security Agreement and any other security document delivered to
the Administrative Agent purporting to grant a Lien on any Property of any
Obligor to secure any of its obligations hereunder or under the other Loan
Documents.


 


“Senior Creditors”
means the Secured Creditors other than the Subordinated Creditors.


 


“Senior Obligations”
means all Secured Obligations held by the Senior Creditors.


 


“Senior Secured Debt”
means Indebtedness for Borrowed Money of the Obligors, on a Consolidated basis,
that is (a) not subordinated in right of payment to any other Indebtedness
and that is secured by a Lien on Property of any Obligor or (b) owing
hereunder to Affiliate Lenders.


 


“Subordinated Creditor”
means (a) each Affiliate Lender and (b) each subsequent holder of
Loans, Commitments, participations in Letters of Credit and/or participations
in Swing Line Loans (other than Affiliate Lenders) assigned by Affiliate
Lenders if such Loans, Commitments and/or participations are assigned at a time
that an Event of Default shall have occurred and be continuing, but, in the
case of this clause (b), only for so long as such Event of Default shall be
continuing and only to the extent of the Loans, Commitments and/or participations
assigned by such Affiliate Lenders.


 


“Subordinated
Creditor Account” means a cash collateral account
established at Citibank, N.A. (or an Affiliate thereof), which account shall be
subject to a valid first priority perfected Lien in favor of the Senior
Creditors pursuant to an Affiliate Lender Pledge Agreement and under the
control (as defined in Section 9-104 of the NYUCC) of the Administrative
Agent for the benefit of the Senior Creditors.


 


“Subordinated Obligations”
means all Secured Obligations held by the Subordinated Creditors.


 


2.03.        Defaulting Lender. 
The following new Section 3.14 shall be added immediately after Section 3.13
of the Credit Agreement:


 


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“SECTION 3.14.  Defaulting Lender.  The Borrower shall have the right, upon at
least three Business Days’ notice to the Administrative Agent, to terminate in
whole the Commitment of a Defaulting Lender (but without a reduction or
termination of the Commitments of the other Lenders), and the Aggregate
Facility Amount shall be reduced by the amount of such Defaulting Lender’s
Commitment in effect immediately prior to such termination; provided
that (x) such termination will not be deemed to be a waiver or release of
any claim the Borrower, the Administrative Agent, any Issuing Lender, the Swing
Line Lender or any Lender may have against such Defaulting Lender under this
Agreement, (y) any fees owing to such Defaulting Lender with respect to
its Commitment through the effective date of such termination shall be paid on
the next date on which such fees are paid to the other Lenders pursuant to the
terms of this Agreement and (z) the Borrower shall not be required to pay
the principal of or interest on the Loans, or any other amounts payable under
the Loan Documents, owing to such Lender on the effective date of such
termination as a condition thereto, but shall be required to pay such
principal, interest and other amounts owing to such Lender at the times
otherwise provided for in the Loan Documents and such Lender shall continue to
be a “Lender” under the Loan Documents until such principal, interest and other
amounts are paid in full.”


 


2.04.        Events
of Default.  Section 7.01 of the
Credit Agreement is hereby amended by:


 


(a)  deleting the “or” at the end of
clause (l) thereof;


 


(b)  adding an “or” at the end of clause
(m) thereof”; and


 


(c)  adding the following new clause (n) immediately
after clause (m) thereof:


 


“(n)  the provisions of Section 9.18(c) shall
not be valid and binding on, or enforceable against, the Subordinated
Creditors, or any Obligor or any Subordinated Creditor shall so assert in
writing.”


 


2.05.        Assignments
by Lenders.  Section 9.06(b) of
the Credit Agreement is hereby amended by:


 


(a)  amending the parenthetical “(including
all or a portion of its Commitment and the Loans at the time owing to it)” in
the first sentence therein to read in its entirety as follows:


 


“(including all or a portion of its Commitment and the Loans and
participations in Letters of Credit and Swing Line Loans at the time owing to
it)”;


 


(b)  amending paragraphs (i) and (ii) thereof
to read in their entirety as follows:


 


“(i)  except
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans and participations in Letters of Credit and
Swing Line Loans at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (used and unused) or, if
the applicable Commitment is not then in effect, the principal outstanding
balance of the Loans and participations in Letters of Credit and Swing Line
Loans of the assigning Lender subject to each such assignment 


 


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(determined as of the date
the Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date) shall not be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, unless each of the
Administrative Agent and, unless an Event of Default has occurred and is
continuing, the Borrower otherwise consent (each such consent not to be
unreasonably withheld or delayed);


 


(ii) 
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender’s rights and obligations under this Agreement under
both Tranches with respect to the Loans and participations in Letters of Credit
and Swing Line Loans or the Commitment assigned;”;


 


(c)  replacing the period at the end of
paragraph (iii) thereof with “; and”;


 


(d)  adding the following new paragraph (iv) immediately
after clause (iii) thereof:


 


“(iv)  each assignment to a Permitted Affiliate Assignee shall be
subject to the following additional terms and conditions:


 


(A)  The applicable Permitted Affiliate Assignee shall, at least
two Business Days prior to the Assignment Date, provide written notice to the
Administrative Agent in form reasonably acceptable to the Administrative Agent
(each, an “Affiliate Assignment Notice”), such notice to be irrevocably
binding on such Permitted Affiliate Assignee, stating (1) that such
Permitted Affiliate Assignee shall accept assignments from one or more Lenders
in accordance with this Section 9.06(b)(iv), (2) the proposed
Assignment Date, (3) the intended aggregate amount of Commitments (used
and unused) or, if the Commitments are not then in effect, the principal
outstanding balance of Loans and participations in Letters of Credit and Swing
Line Loans proposed to be included in such assignments (determined in the
manner described in Section 9.06(b)(i)) (the “Proposed Assignment
Amount”), which amount shall be equal to $10,000,000 or an integral multiple
of $1,000,000 in excess thereof, and (4) the premium or discount to par
value, if any, to be paid by the Permitted Affiliate Assignee for the assigned
interests (the “Applicable Price”);


 


(B)  Upon receipt of any Affiliate Assignment Notice, the Administrative
Agent shall promptly notify each Lender thereof.  On or prior to the proposed Assignment Date,
each Lender may (but shall not be obligated to) elect by written notice to the
Administrative Agent (each such notice, an “Election Notice”), in form reasonably
acceptable to the Administrative Agent, such notice to be irrevocably binding
on such Lender (each an “Electing Lender”) when received by the
Administrative Agent, an amount of such Electing Lender’s Commitment (used and
unused) or, if its Commitment is not then in effect, its Loans and
participations in Letters of Credit and Swing Line Loans, which it offers to
assign to the applicable Permitted Affiliate Assignee (such amount, such
Electing Lender’s “Election Amount”, and the aggregate amount of all
such Election Amounts, the “Total Election Amount”) at the 


 


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Applicable
Price.  Upon receipt of any Election
Notice, the Administrative Agent shall promptly deliver a copy thereof to the
Borrower and each applicable Permitted Affiliate Assignee.  On the proposed Assignment Date,
notwithstanding the requirements as to amounts of assignments set forth in Section 9.06(b)(i),
(1) in the event that the Total Election Amount exceeds the Proposed
Assignment Amount, the applicable Permitted Affiliate Assignee shall, at its
option, either (x) accept assignments from the Electing Lenders in the
amounts of their respective Election Amounts or (y) accept assignments
from the Electing Lenders ratably based on their respective Election Amounts in
an aggregate amount at least equal to the Proposed Assignment Amount, and (2) in
the event that the Total Election Amount is less than or equal to the Proposed
Assignment Amount, the applicable Permitted Affiliate Assignee shall accept
assignments from the Electing Lenders in the amounts of their respective
Election Amounts; and


 


(C)  The effectiveness of each assignment to a Permitted Affiliate
Assignee shall be subject to (x) the execution by such Permitted Affiliate
Assignee and delivery to the Administrative Agent of an Affiliate Lender Pledge
Agreement and (y) in the event any Letter of Credit or Swing Line Loans
shall be outstanding on the applicable Assignment Date, the Cash
Collateralization by such Permitted Affiliate Assignee of the assigned
obligations (contingent or otherwise) in respect of any Letter of Credit or
Swing Line Loan outstanding at such time in an amount at least equal to (i) 100%
of the aggregate amount of such obligations, in the case of Swing Line Loans or
Letters of Credit denominated in Dollars, or (ii) 105% of the Dollar
Equivalent of the aggregate amount of such obligations, in the case of Letters
of Credit denominated in Alternate Currencies. 
To the extent not expressly provided for herein, each assignment to a
Permitted Affiliate Assignee shall be consummated pursuant to reasonable
procedures (including as to response deadlines, rounding and minimum amounts
and Type and Interest Periods of accepted Loans) established from time to time
by the Administrative Agent.”; and


 


(e)  amending the final paragraph thereof to read in its entirety
as follows:


 


“Subject
to notice to the Borrower and acceptance and recording thereof by the
Administrative Agent pursuant to clause (c) of this Section, from and
after the Assignment Date specified in each Assignment and Assumption (an “Assignment
Date”), the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption
(except as set forth in Section 9.18), 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 3.11, 3.12  and 9.04 with respect to facts and
circumstances occurring prior to such Assignment Date.  Any assignment or 


 


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transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this Section 9.06 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 clause (d) of this Section; provided
that any attempted assignment or transfer by a Lender of rights or obligations
under this Agreement to an Affiliate of the Borrower that does not comply with
this Section 9.06 or with Section 9.18 shall be null and void.”


 


2.06.        Participations.  Section 9.06(d) of the Credit
Agreement is hereby amended by:


 


(a)  amending the parenthetical “(other than a natural person or
the Borrower or any of the Borrower’s Affiliates or Subsidiaries)” therein to
read in its entirety as follows:


 


“(other
than a natural person, the Borrower, any of the Borrower’s Subsidiaries or, unless
the Lender selling such participation is an Affiliate Lender, any of the
Borrower’s Affiliates)”; and


 


(b)  amending the parenthetical “(including all or a portion of
its Commitment and/or the Loans owing to it)” therein to read in its entirety
as follows:


 


“(including
all or a portion of its Commitment and/or the Loans and participations in
Letters of Credit and Swing Line Loans owing to it)”.


 


2.07.        Affiliate Lenders.  The following new Section 9.18 shall be
added immediately after Section 9.17 of the Credit Agreement:


 


“SECTION 9.18.  Affiliate Lenders.


 


(a)  Voting Rights,
Lender Communications, etc.  In
respect of any amendments, modifications or waivers of any provision of the
Credit Agreement or any actions to be taken by or approved by the Lenders or
the Majority Lenders, any Affiliate Lender shall be deemed to have voted in the
same manner as the majority in interest of the other Lenders (determined by
reference to their respective Commitments, Loans, participations in Swing Line
Loans and L/C Exposure) voting on such matter (with abstentions being deemed to
constitute votes against the proposed action, amendment, modification or
waiver); provided that no amendment, waiver or consent may (x) increase
the Commitment of any Affiliate Lender, (y) reduce the principal of, or
postpone any date for payment of principal of, any Loan owing to any Affiliate
Lender, or (z) by its terms disproportionately and adversely affect any
Affiliate Lender differently than other Lenders, in each case without the
consent of such Affiliate Lender.  In
addition, each Affiliate Lender agrees that it will not and irrevocably and
unconditionally waives its rights to, in its capacity as a Lender, (i) oppose,
contest, object to or in any manner attempt to modify any position advocated,
or any course of action supported or taken, by the majority in interest of the
other Lenders (determined as aforesaid) in any bankruptcy, insolvency or
similar proceeding involving any Obligor or (ii) independently assert any
rights or claims or file any motions or take any other actions not otherwise
approved by a majority in interest of the other Lenders (determined as
aforesaid), including without limitation any motion for relief or stay or
provision of debtor-in-possession financing. 



 


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Each Affiliate Lender hereby acknowledges and agrees
that, in its capacity as such, it shall not be entitled to (A) participate
in any meetings or conference calls with the other Lenders and/or the
Administrative Agent in relation to this Agreement or any of the other Loan
Documents or (B) receive communications from the Administrative Agent or
the Lenders in relation to this Agreement or any of the other Loan Documents
other than notices or other information provided by the Borrower to the
Administrative Agent for distribution to the Lenders.


 


(b) 
Cash Collateralization of Letter of Credit and Swing Line Loan Obligations
of Affiliate Lenders.  If any Letter
of Credit or Swing Line Loan shall be issued or made at any time when an
Affiliate Lender is a party hereto, such Affiliate Lender shall be required to
Cash Collateralize its obligations (contingent or otherwise) to the applicable
Issuing Lender or the Swing Line Lender, as the case may be, in respect of such
Letter of Credit or Swing Line Loan in an amount at least equal to (i) 100%
of the aggregate amount of such obligations, in the case of Swing Line Loans or
Letters of Credit denominated in Dollars, or (ii) 105% of the Dollar
Equivalent of the aggregate amount of such obligations, in the case of Letters
of Credit denominated in Alternate Currencies. 
No Issuing Lender will be required to issue any Letter of Credit or to
amend any outstanding Letter of Credit, and the Swing Line Lender will not be
required to make any Swing Line Loan, unless the obligations (contingent or
otherwise) of each Affiliate Lender to such Issuing Lender or the Swing Line
Lender in respect of such Letter of Credit or Swing Line Loan are so Cash
Collateralized.


 


(c)  Subordination
of Obligations held by Subordinated Creditors.


 


(i)            Payment Subordination during the continuance of an
Event of Default.  Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, the Subordinated
Obligations are subordinated and subject in right of payment to the Senior
Obligations such that, upon the occurrence and during the continuance of an
Event of Default, the Senior Creditors shall be entitled to receive
indefeasible payment in full in cash of the amounts constituting the Senior
Obligations and all of the Commitments and Letters of Credit shall have expired
or terminated before any Subordinated Creditor is entitled to receive any
payment on account of the Subordinated Obligations and, in that connection,
upon the occurrence of an Event of Default, until the date (the “Release
Date”) that is the earlier to occur of (x) such time as there are no
Events of Default continuing and (y) the expiration or termination of all
Commitments (whether on the Commitment Termination Date or otherwise) and
Letters of Credit and the indefeasible payment in full in cash of the principal
of and interest on, and all other amounts in respect of, all Senior
Obligations:


 


(1)           all payments on account of the principal of or interest
on, or any other amount in respect of, the Subordinated Obligations shall not
be made to the Subordinated Creditors and shall instead be deposited by the
Administrative Agent, after first converting any such amounts that are in
Alternate Currencies into Dollars at the applicable spot rate for such day
determined in accordance with its customary business practices, into the
applicable Subordinated Creditor Account; and


 


(2)           no Subordinated Creditor shall (i) ask, demand, sue
for, accelerate or take or receive from any Obligor, by set-off or in any other



 


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manner, any payment on account of Subordinated
Obligations or (ii) seek any other remedy allowed at law or in equity
against any Obligor for breach of such Obligor’s obligations thereunder,


 


provided that amounts deposited into
the applicable Subordinated Creditor Account shall be released to the
applicable Subordinated Creditors on the applicable Release Date.


 


(ii)           Actions upon Dissolution.  In the event of any dissolution or winding up
or total or partial liquidation or reorganization of any Obligor (other than
any such transaction not then constituting a continuing Default or Event of
Default), whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, then upon any payment or distribution of
assets of such Obligor of any kind or character, whether in cash, property or
securities, to any of its creditors (including any Subordinated Creditor) of
any amounts (including interest, indemnities and fees) due or to become due,
all Senior Obligations shall first be paid in full in cash before any
Subordinated Creditor shall be entitled to retain any assets so paid or
distributed in respect of the Subordinated Obligations (for principal, premium,
interest or otherwise) and, to that end, the Senior Creditors shall be entitled
to receive for application in payment thereof any payment or distribution of
any kind or character, whether in cash or property or securities that would,
but for the provisions of this Section 9.18(c) (these “Subordination
Terms”), be paid or delivered to a Subordinated Creditor.  If a Subordinated Creditor shall have failed
to file claims or proofs of claim with respect to the Subordinated Obligations
at least 30 days prior to the deadline for any such filing, the Administrative
Agent, on behalf of the Senior Creditors is hereby irrevocably authorized to
vote and file proofs of claim and otherwise to act with respect to the
Subordinated Obligations as the Administrative Agent, on behalf of the Senior
Creditors, may deem appropriate using its reasonable discretion under the
circumstances.  Each Subordinated
Creditor shall provide to the Administrative Agent, on behalf of the Senior
Creditors, all information and documents necessary to present claims or seek
enforcement as aforesaid and will duly and promptly take such action as the
Administrative Agent may request to collect the Subordinated Obligations for
the account of the Administrative Agent and the Senior Creditors and to file
appropriate claims or proofs of claim with respect thereto.  If the Administrative Agent does not exercise
its right to vote the Subordinated Obligations or otherwise act in any such
reorganization proceeding as set forth in this clause (ii) (including the
right to vote to accept or reject any plan of partial or complete liquidation,
reorganization, arrangement, composition or extension), no Subordinated
Creditor shall take any action or vote in any way so as to contest (a) the
validity or enforceability of any of the Loan Documents, (b) the rights
and duties of the Administrative Agent and the Senior Creditors established in
any of the Loan Documents or (c) the validity or enforceability of the
subordination provisions set forth in this Section 9.18(c).


 


(iii)          Turnover by the Subordinated Creditor.  If any payment or distribution of any
character, whether in cash, securities or other property, in respect of the
Subordinated Obligations shall be received by a Subordinated Creditor in
contravention of these Subordination Terms, such payment or distribution shall
be held in trust for the benefit of, and shall be paid over or 


 


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delivered to, the Administrative Agent for the
benefit of the Senior Creditors, ratably according to the respective aggregate
amounts remaining unpaid thereon, to the extent necessary to pay all Senior
Obligations in full in cash. 
Notwithstanding anything to the contrary contained herein, no
Subordinated Creditor shall have any rights under Section 3.08 but
(without limiting its obligations under these Subordination Terms) acknowledges
its obligations under such Section.


 


(iv)          No Petition. 
So long as any Senior Obligation is outstanding, no Subordinated
Creditor shall commence, or join with any creditor (other than any Senior
Creditor) in commencing, or directly or indirectly cause any Obligor to
commence, or assist any Obligor in commencing, any proceeding referred to
clause (ii) above.


 


(v)           Continuation. 
The provisions of these Subordination Terms constitute a continuing
agreement and shall (x) remain in full force and effect until all Senior
Obligations (other than contingent indemnity obligations not then payable) have
been indefeasibly paid in full in cash and all Commitments and Letters of
Credit have expired or terminated, (y) be binding upon each Subordinated
Creditor and the Obligors and their respective successors, transferees and
assignees, and (z) inure to the benefit of, and be enforceable by, the
Senior Creditors.


 


(vi)          Automatic Reinstatement.  These Subordination Terms shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of any Obligor in respect of the Senior Obligations is
rescinded or must be otherwise restored by any holder of any of the Senior
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise.


 


(vii)         Subrogation.  Each of the Subordinated Creditors hereby
waives any and all rights to be subrogated to the rights of any Senior Creditor
under or with respect to the Senior Obligations.


 


(viii)        No Impairment.  No right of the Senior Creditors to enforce
the subordination provisions herein shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the Obligors or by any
act or failure to act, in good faith, by the Senior Creditors, or by any
noncompliance by the Obligors with the terms of any of the Secured Obligations,
the Senior Obligations, the Subordinated Obligations, regardless of any
knowledge thereof which any such Senior Creditor may have or be otherwise charged
with.  The Senior Creditors may extend,
renew, modify or amend the terms of any of the Secured Obligations or the
Senior Obligations or any security therefor and release, sell or exchange such
security and otherwise deal freely with the Obligors, all without affecting the
rights of the Senior Creditors hereunder.


 


(ix)           Continuing Effect.  All rights and interests hereunder, under any
Affiliate Lender Pledge Agreement or under the other Loan Documents of the
Senior Creditors, and all agreements and obligations of  any Subordinated Creditor hereunder, under
any Affiliate Lender Pledge Agreement or under the other Loan Documents, shall
remain in full force and effect irrespective of (A)


 


10

















 


any lack of validity or
enforceability of the Credit Agreement, any Affiliate Lender Pledge Agreement
or any other Loan Document, or of any provision of any thereof or (B) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of the Obligors in respect of any of the Secured Obligations.


 


The parties hereto agree
that the provisions of this Section 9.18(c) set forth a contractual
agreement of the type contemplated by Section 510(a) of Title 11 of
the United States Code entitled “Bankruptcy”. 
The provisions of this Section 9.18(c) are solely for the
purpose of defining the relative rights of the Senior Creditors on the one
hand, and the Subordinated Creditors on the other hand, and nothing in this Section 9.18(c) shall
impair, as between the Obligors and the Subordinated Creditors, the obligation
of the Obligors to pay to the Subordinated Creditors the principal and of and
interest on the Subordinated Obligations as and when the same shall become due
and payable in accordance with the terms of the Loan Documents, nor shall
anything in this Section 9.18(c) prevent the Subordinated Creditors
from exercising all remedies otherwise permitted by applicable law in respect
hereof, subject to the rights under this Section 9.18 of the Senior
Creditors.”


 


Section 3. 
Consent to Termination of Commitment of LCPI.  Subject to the satisfaction of the conditions
precedent specified in Section 5 below, the Obligors and the Majority
Lenders hereby agree that the Commitment (the “Terminated Commitment”)
of Lehman Commercial Paper Inc. (“LCPI”) may be terminated (but without
a reduction or termination of the Commitments of the other Lenders) pursuant to
an agreement between the Borrower, LCPI and the Administrative Agent, whereupon
LCPI shall have no further obligation to fund any amounts under the Credit
Agreement.  Concurrently with any
subsequent payment of principal, interest or fees to the Lenders with respect
to any period before the foregoing termination of Terminated Commitments the
Borrower shall pay to LCPI its ratable share as provided in the Credit
Agreement of such principal, interest or fees, as applicable with respect to
the Terminated Commitments.  Upon the
effective date of the foregoing termination of the Terminated Commitments, LCPI
shall not be deemed to be a Defaulting Lender with respect to any funded Loans
existing as of such date and shall retain all rights of a Lender under the
Credit Agreement (including, without limitation, voting rights and rights to
payments of any fees, interest and principal; it being understood, for the
avoidance of doubt, that no commitment fees accruing after the date of the
foregoing termination of the Terminated Commitments shall be payable in respect
of the Terminated Commitments).  Any
Loans made by LCPI that are subsequently repaid or prepaid, whether on account
of any mandatory or voluntary prepayment or otherwise, may not be reborrowed.


 


Section 4. 
Representations and Warranties. 
Each Obligor represents and warrants to the Administrative Agent and the
Lenders that immediately before and after giving effect to this Amendment No. 1
and Consent (a) the representations and warranties set forth in Article V
of the Credit Agreement and in the other Loan Documents (as such term is
defined in the Credit Agreement as amended hereby) are true and correct in all
material respects on the date hereof as if made on and as of the date hereof
(or, if any representation or warranty is expressly stated to have been made as
of a specific date, such representation or warranty shall be true and correct
in all material respects as of such specific date) and (b) no Default or
Event of Default has occurred and is continuing.


 


Section 5. 
Conditions Precedent.  The
amendments set forth in Section 2 hereof and the agreements of the parties
hereto set forth in Section 3 hereof shall each become effective 


 


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on
the date on which the following conditions are satisfied (such date, the “Amendment
No. 1 and Consent Effective Date”):


 


(a)           this
Amendment No. 1 and Consent shall have been duly executed and delivered by
the Obligors, the Administrative Agent and the Majority Lenders;


 


(b)           each Lender that shall have delivered (by facsimile
or otherwise) an executed signature page to this Amendment No. 1 and
Consent on or prior to 5:00 p.m. New York City time on August 14,
2009 shall have received from the Borrower payment in immediately available
funds of an amendment fee equal to 0.05% of the Commitments of such Lender (the
“Amendment Fee”);


 


(c)           Citigroup Global Markets Inc. (“CGMI”) shall
have received from the Borrower payment in immediately available funds of an
arrangement fee in an amount that shall have been agreed between the Borrower
and CGMI (the “Arrangement Fee”);


 


(d)           the
Administrative Agent shall have received from the Borrower payment in
immediately available funds of all reasonable out-of-pocket expenses incurred
by the Administrative Agent (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent) in connection with this
Amendment No. 1 and Consent, the Credit Agreement and each other Loan
Document, as required by Section 7 hereof (collectively, the “Agent’s
Expenses”); and


 


(e)           no
Swing Line Loans or L/C Exposure shall be outstanding.


 


Section 6. 
Costs and Expenses.  The
Obligors agree to pay the Agent’s Expenses as provided in Section 5 hereof
and Section 9.04(a) of the Credit Agreement.


 


Section 7.  Confirmation of Security Documents.  Each of the Obligors (a) confirms its
obligations under the Security Documents (as such term is defined in the Credit
Agreement as amended hereby), as applicable, (b) confirms that the
obligations of the Borrower under the Credit Agreement as amended hereby are
entitled to the benefits of the pledges and guarantees, as applicable, set
forth in the Security Documents and (c) confirms that the Credit Agreement
as amended hereby is the Credit Agreement under and for all purposes of the
Security Documents.


 


Section 8. 
Miscellaneous.  Except as
herein provided, the Credit Agreement shall remain unchanged and in full force
and effect.  This Amendment No. 1
and Consent shall constitute a “Loan Document” for all purposes of the Credit
Agreement.  This Amendment No. 1 and
Consent may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and both of which taken together shall constitute one and the
same agreement.  Delivery of an executed
counterpart of a signature page to this Amendment No. 1 and Consent
by electronic transmission shall be effective as delivery of a manually
executed counterpart of this Amendment No. 1 and Consent.  This Amendment No. 1 and Consent shall
be governed by, and construed in accordance with, the law of the State of New
York.


 


Section 9. 
Limitation.  Each party
hereto hereby agrees that this Amendment No. 1 and Consent (i) does
not impose on LCPI affirmative obligations or indemnities not already existing
as of the date of its petition commencing its proceeding under Chapter 11 of
Title 11 of 


 


12

















 


the
United States Code entitled “Bankruptcy”, and that could give rise to
administrative expense claims and (ii) is not inconsistent with the terms
of the Credit Agreement.


 


Section 10. 
Issuing Lender.  The
parties hereto hereby acknowledge that Wachovia Bank, N.A. shall cease to be an
Issuing Lender as of the Amendment No. 1 and Consent Effective Date.


 


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IN WITNESS WHEREOF, the parties hereto have caused
this Amendment No. 1 and Consent to be executed by their respective
officers or representatives thereunto duly authorized, as of the date first
above written.


 


	
   

  	
  KKR PEI INVESTMENTS, L.P.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
  By: KKR PEI Associates, L.P., its general partner

  
	
   

  	
  By: KKR PEI GP Limited (Registration No. 44667), its general
  partner

  
	
   

  	
   

  
	
   

  	
  GUARANTORS

  
	
   

  	
   

  
	
   

  	
  KKR SPRINT (KPE) LIMITED

  
	
   

  	
   

  
	
   

  	
  KKR PEI ALTERNATIVE INVESTMENTS LIMITED

  
	
   

  	
   

  
	
   

  	
  KKR PEI JAPAN INVESTMENT I, LTD.

  
	
   

  	
   

  
	
   

  	
  SEVRES IV, S.A R.L.

  
	
   

  	
   

  
	
   

  	
  KKR PEI SICAR, S.À R.L.

  



 

















 


	
   

  	
  CITIBANK, N.A., as Administrative Agent

  



 

















 


	
   

  	
  LENDERS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITIBANK, N.A.

  
	
   

  	
   

  
	
   

  	
  GOLDMAN SACHS CREDIT PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  
	
   

  	
  ABN AMRO BANK N.V.

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  BEAR STEARNS CORPORATE LENDING INC.

  
	
   

  	
   

  
	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS BRANCH

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG, NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  LEHMAN COMMERCIAL PAPER INC.

  
	
   

  	
   

  
	
   

  	
  MERRILL LYNCH BANK USA

  
	
   

  	
   

  
	
   

  	
  ROYAL BANK OF CANADA

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION