Exhibit 10.8


 


EXECUTION
COPY




 





 


$1,000,000,000


 


5-YEAR
REVOLVING CREDIT AGREEMENT


 


Dated as of June 11,
2007


 


Among


 


KKR PEI
INVESTMENTS, L.P.,


 


as
Borrower


 


THE
LENDERS PARTY HERETO


 


CITIBANK,
N.A.,


as
Administrative Agent


 


CITIGROUP
GLOBAL MARKETS INC.,


 


GOLDMAN
SACHS CREDIT PARTNERS, L.P.


 


and


 


MORGAN
STANLEY BANK


as Joint
Lead Arrangers and Joint Bookrunners




 





 

















 


T  A  B  L  E  
O  F   C  O
N  T  E  N  T  S


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
   

  	
  1

  
	
  SECTION 1.01. Defined Terms

  	
   

  	
  1

  
	
  SECTION 1.02.  Terms
  Generally

  	
   

  	
  18

  
	
  SECTION 1.03.  Accounting
  Terms; GAAP

  	
   

  	
  18

  
	
  ARTICLE
  II THE COMMITMENTS

  	
   

  	
  19

  
	
  SECTION 2.01.
  The Loans

  	
   

  	
  19

  
	
  SECTION 2.02. Letter Of Credit
  Facility

  	
   

  	
  21

  
	
  SECTION 2.03.  Swing
  Line Facility

  	
   

  	
  25

  
	
  SECTION 2.04.
  Fees

  	
   

  	
  27

  
	
  SECTION 2.05.
  Changes of Commitments

  	
   

  	
  28

  
	
  ARTICLE
  III Payments

  	
   

  	
  31

  
	
  SECTION 3.01.
  Repayment

  	
   

  	
  31

  
	
  SECTION 3.02.
  Interest

  	
   

  	
  31

  
	
  SECTION 3.03.
  Eurocurrency Reserves

  	
   

  	
  32

  
	
  SECTION 3.04.
  Interest Rate Determinations

  	
   

  	
  32

  
	
  SECTION 3.05.
  Voluntary Conversion or Continuation of Loans

  	
   

  	
  33

  
	
  SECTION 3.06.
  Prepayments of Loans

  	
   

  	
  34

  
	
  SECTION 3.07.
  Payments; Computations; Etc.

  	
   

  	
  35

  
	
  SECTION 3.08.
  Sharing of Payments, Etc.

  	
   

  	
  37

  
	
  SECTION 3.09.
  Increased Costs

  	
   

  	
  38

  
	
  SECTION 3.10.
  Illegality

  	
   

  	
  39

  
	
  SECTION 3.11.
  Taxes

  	
   

  	
  39

  
	
  SECTION 3.12.  Break
  Funding Payments

  	
   

  	
  40

  
	
  SECTION 3.13.
  Mitigation Obligations; Replacement of
  Lenders

  	
   

  	
  41

  
	
  ARTICLE
  IV CONDITIONS PRECEDENT

  	
   

  	
  42

  
	
  SECTION 4.01.
  Closing Conditions

  	
   

  	
  42

  
	
  SECTION 4.02.
  Conditions Precedent to Each Borrowing and Issuance

  	
   

  	
  43

  
	
  ARTICLE
  V REPRESENTATIONS AND WARRANTIES

  	
   

  	
  44

  
	
  SECTION 5.01.
  Representations and Warranties

  	
   

  	
  44

  
	
  ARTICLE
  VI COVENANTS

  	
   

  	
  47

  
	
  SECTION 6.01. Affirmative Covenants

  	
   

  	
  47

  
	
  SECTION 6.02.
  Negative Covenants

  	
   

  	
  50

  
	
  SECTION 6.03.
  Financial Covenant

  	
   

  	
  51

  
	
  ARTICLE
  VII EVENTS OF DEFAULT

  	
   

  	
  52

  
	
  SECTION 7.01.
  Events of Default

  	
   

  	
  52

  
	
  ARTICLE VIII THE ADMINISTRATIVE
  AGENT

  	
   

  	
  54

  
	
  SECTION 8.01.
  Appointment and Authority

  	
   

  	
  54

  
	
  SECTION 8.02.
  Rights as a Lender

  	
   

  	
  54

  
	
  SECTION 8.03.
  Exculpatory Provisions

  	
   

  	
  54

  
	
  SECTION 8.04.
  Reliance by Administrative Agent

  	
   

  	
  55

  
	
  SECTION 8.05.
  Delegation of Duties

  	
   

  	
  55

  
	
  SECTION 8.06.
  Resignation of Administrative Agent

  	
   

  	
  55

  
	
  SECTION 8.07.
  Non-Reliance on Administrative Agent
  and Other Lenders

  	
   

  	
  56

  
	
  SECTION 8.08.
  No Other Duties; Etc.

  	
   

  	
  56

  
	
  ARTICLE IX MISCELLANEOUS

  	
   

  	
  57

  
	
  SECTION 9.01. Amendments, Etc.

  	
   

  	
  57

  



 


i

















 


	
  SECTION 9.02.
  Notices, Etc.

  	
   

  	
  57

  
	
  SECTION 9.03.
  No Waiver; Remedies; Setoff

  	
   

  	
  60

  
	
  SECTION 9.04.
  Expenses; Indemnity; Damage Waiver

  	
   

  	
  60

  
	
  SECTION 9.05.
  Binding Effect, Successors and Assigns

  	
   

  	
  61

  
	
  SECTION 9.06.
  Assignments and Participations

  	
   

  	
  62

  
	
  SECTION 9.07.
  Governing Law; Jurisdiction; Etc.

  	
   

  	
  64

  
	
  SECTION 9.08.
  Severability

  	
   

  	
  65

  
	
  SECTION 9.09.
  Counterparts; Integration;
  Effectiveness; Execution

  	
   

  	
  65

  
	
  SECTION 9.10.
  Survival

  	
   

  	
  65

  
	
  SECTION 9.12.
  Confidentiality

  	
   

  	
  66

  
	
  SECTION 9.13.
  No Fiduciary Relationship

  	
   

  	
  67

  
	
  SECTION 9.14.
  Headings

  	
   

  	
  67

  
	
  SECTION 9.15.
  USA PATRIOT Act

  	
   

  	
  67

  
	
  SECTION 9.16. Judgment
  Currency

  	
   

  	
  67

  
	
  SECTION 9.17
  European Monetary Union

  	
   

  	
  67

  



 


ii

















 


SCHEDULES


 


	
  Schedule I

  	
   

  	
  Lenders and Commitments

  
	
  Schedule II

  	
   

  	
  Existing Liens

  
	
  Schedule III

  	
   

  	
  Portfolio Investments

  
	
  Schedule IV

  	
   

  	
  Portfolio Limitations

  
	
  Schedule V

  	
   

  	
  Valuation Criteria

  
	
  Schedule VI

  	
   

  	
  Investment Strategies

  
	
  Schedule VII

  	
   

  	
  Mandatory Cost Rate

  
	
  Schedule VIII

  	
   

  	
  Subsidiaries

  



 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  Form of Note

  
	
  Exhibit B

  	
   

  	
  Form of Guarantee and Security Agreement

  
	
  Exhibit C

  	
   

  	
  Form of Notice of Borrowing

  
	
  Exhibit D-1

  	
   

  	
  Form of Opinion of Special Guernsey Counsel to
  Obligors

  
	
  Exhibit D-2

  	
   

  	
  Form of Opinion of Special New York Counsel to
  Obligors

  
	
  Exhibit D-3

  	
   

  	
  Form of Opinion of Special New York Counsel to
  the Administrative Agent

  
	
  Exhibit E

  	
   

  	
  Form of New Lender Assumption Agreement

  
	
  Exhibit F

  	
   

  	
  Form of Assignment and Assumption

  
	
  Exhibit G

  	
   

  	
  Form of Borrowing Base Certificate

  



 


iii

















 


REVOLVING
CREDIT AGREEMENT dated as of June 11, 2007 (this “Agreement”) among
KKR PEI INVESTMENTS, L.P.,  a Guernsey
limited partnership (the “Borrower”) (acting through its general
partner, KKR PEI Associates, L.P., a Guernsey limited partnership acting
through its general partner, KKR PEI GP Limited, a Guernsey limited company),
each of the Lenders (as defined below), and CITIBANK, N.A., as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).


 


The Borrower has
requested the Lenders to make revolving credit loans to the Borrower in
aggregate amount of up to $1,000,000,000 (or the equivalent in one or more
Alternate Currencies as hereinafter defined) at any one time outstanding
(subject to increase as herein provided), and the Lenders are willing to make
such loans on and subject to the terms and conditions set forth herein.


 


Accordingly, the
parties agree as follows:


 


ARTICLE I



DEFINITIONS


 


SECTION 1.01.  Defined Terms.  As used in this Agreement, the following
terms shall have the following respective meanings:


 


“ABR” means
a fluctuating interest rate per annum which shall at any time be the higher of:


 


(i)  the
rate of interest announced publicly by Citibank, N.A. as its base rate in effect
at its principal office in New York, New York; and


 


(ii)  1/2
of 1% per annum above the Federal Funds Rate.


 


“ABR Loan”
means, at any time, a Loan which bears interest at rates based upon the ABR.


 


“Administrative
Agent” has the meaning specified in the introduction hereto.


 


“Administrative
Agent’s Account” means, with respect to any Currency, the account of the
Administrative Agent for such Currency most recently designated by it as such
by notice 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 a
specified Person, another Person that directly or indirectly Controls or is
Controlled by or is under common Control with such specified Person.


 

















 


“Aggregate Borrowing
Availability” means, at any time, the lesser of (a) the Aggregate
Facility Amount at such time and (b) the sum of the Tranche A Borrowing
Base and the Tranche B Borrowing Base at such time, reduced by the sum of the
Total Credit Exposure for both Tranches at such time.


 


“Aggregate Facility
Amount” means, at any time, the aggregate amount of the Commitments then in
effect.  The initial Aggregate Facility
Amount is $1,000,000,000.


 


“Alternate Currency”
means the Euro, British Pounds Sterling, Canadian Dollars and Japanese Yen and
any other currency acceptable to the Lenders that is freely convertible into
Dollars and available to be borrowed in the London interbank market.


 


“Alternate
Currency Equivalent” means, with respect to any amount in Dollars, the
amount of an Alternate Currency that could be purchased with such amount of
Dollars using the reciprocal of the foreign exchange rate specified in the
definition of “Dollar Equivalent”, as determined by the Administrative Agent,
each such determination to be conclusive and binding on the parties in the
absence of manifest error.


 


“Applicable
Lending Office” means, with respect to any Lender, such Lender’s Domestic
Lending Office in the case of an ABR Loan and such Lender’s Eurocurrency
Lending Office in the case of a Eurocurrency Loan.


 


“Applicable
Margin” refers to the Tranche A Applicable Margin or the Tranche B
Applicable Margin, as the context requires.


 


“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.


 


“Assignment and
Assumption” means an
assignment and assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by Section 
9.06(b)) and accepted by the Administrative Agent, in substantially the form of
Exhibit F or any other form approved by the Administrative Agent.


 


“Assuming
Lender” has the meaning specified in Section  2.05(c).


 


“Availability”
refers to Tranche A Availability or Tranche B Availability, as the context
requires.


 


“Availability
Period” means the period from the Closing Date until the earlier of (i) the
Commitment Termination Date and (ii) the date of termination of the
Commitments.


 


“Borrower”
has the meaning specified in the introduction hereto.


 


“Borrower
General Partner” means KKR PEI Associates, L.P., a Guernsey limited
partnership and the general partner of the Borrower.


 


2

















 


“Borrower GP
Partnership Agreement” means the Limited Partnership Agreement relating to
the Borrower General Partner, as from time to time amended.


 


“Borrower
Partnership Agreement”  means the
Amended and Restated Limited Partnership Agreement dated 2 May 2007
relating to the Borrower, as from time to time amended.


 


“Borrowing”
means a borrowing consisting of simultaneous Loans of the same Type made by the
Lenders to the Borrower pursuant to Section 2.01.


 


“Borrowing Base” means,
for each Tranche, the aggregate Borrowing Base Value of all Eligible Portfolio
Investments allocated to such Tranche as specified in Schedule III after
applying thereto the Portfolio Limitations, as set forth in the then most
recent Borrowing Base Certificate delivered to the Administrative Agent
pursuant to Section 6.01(a)(iv).


 


“Borrowing Base
Certificate” means a certificate signed by a Financial Officer, in
substantially the form of Exhibit G, delivered to the Administrative
Agent.


 


“Borrowing Base
Value” means, for any Eligible Portfolio Investment, the Value of such
Eligible Portfolio Investment multiplied by the Specified Percentage for
Eligible Portfolio Investments of the relevant category.


 


“Business Day”
means (a) a day on which commercial banks are not authorized by law or
required to close in New York City, (b) if such day relates to a
Eurocurrency Loan denominated in Dollars, that is also a day on which dealings
in Dollar deposits are carried out in the London interbank market, (c) if
such day relates to a Borrowing of, or a payment or prepayment of principal of
or interest on or an Interest Period for a Eurocurrency Loan denominated in an
Alternate Currency (other than Euros), or a notice with respect thereto, that
is also a day on which commercial banks and foreign exchange markets settle
payments in the Principal Financial Center for such Currency, and (d) if
such day relates to a Borrowing of, or a payment or prepayment of principal of
or interest on or an Interest Period for a Eurocurrency Loan denominated in
Euros, or a notice with respect thereto, that is also a Target Operating Day.


 


“Capital Lease
Obligations” of a Person means the obligations of such Person to pay rent
or other amounts under any lease of (or other arrangement conveying the right
to use) Property which obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.


 


“Change in Law”
means the occurrence, after the date of this Agreement, of the adoption of any
law, rule, regulation or treaty, or of any change in applicable law, rule,
regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority having jurisdiction.


 


“Citibank”
means Citibank, N.A., a national banking association.


 


3

















 


“Closing Date”
means the date on which the conditions precedent set forth in Section 4.01
have been satisfied or waived in accordance with Section 9.01.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral”
has the meaning specified in the Guarantee and Security Agreement.


 


“Commitment”
means, as to each Lender, the commitment of such Lender to make Loans to the
Borrower under Section 2.01(a)(i) in an aggregate amount at any one
time outstanding up to the amount set forth opposite such Lender’s name on
Schedule I or, if such Lender has entered into an Assignment and Assumption,
set forth for such Lender in the Register, as such amount may be reduced
pursuant to Section 2.05(b) or increased pursuant to Section 2.05(c).


 


“Commitment
Increase” and “Commitment Increase Date” have the meanings assigned
to those terms in Section 2.05(c)(i).


 


“Commitment Percentage” means, with respect to any Lender,
at any time, the percentage of the Aggregate Facility Amount represented by
such Lender’s Commitment; provided, that if the Commitments have terminated
or expired, the Commitment Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments.


 


“Commitment
Termination Date” means the date five (5) years after the Closing
Date, provided that if such date is not a Business Day, the Commitment
Termination Date shall be the immediately preceding Business Day.


 


“Consolidated”
refers to the consolidation of accounts of a Person and its Subsidiaries in
accordance with GAAP.


 


“Continuation”,
“Continue” and “Continued” refer to a continuation of
Eurocurrency Loans from one Interest Period to the next Interest Period
pursuant to Section  3.05(b).


 


“Control” of a Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ability to exercise voting power,
by contract or otherwise, and “Controlling” and “Controlled” have
meanings correlative thereto.


 


“Convert”, “Conversion”
and “Converted” refer to a conversion of Loans of one Type into Loans of
the other Type pursuant to Section 3.04 or Section 3.05.


 


“Currencies”
means, collectively, Dollars and the Alternate Currencies.


 


“Default”
means an event that, with notice or lapse of time or both, would become an Event
of Default.


 


4

















 


“Dollar
Equivalent” means, on any date, with respect to any amount denominated in
an Alternate Currency, the amount of Dollars that would be required to purchase
such amount of such Alternate Currency at or about 11:00 a.m., Local Time,
on such date, for delivery two Business Days later, as determined by the
Administrative Agent on the basis of the spot selling rate for the offering of
such Alternate Currency for Dollars in the London foreign exchange market, all
determinations thereof by the Administrative Agent to be conclusive and binding
on the parties in the absence of manifest error.


 


“Dollars”
and “$” refers to lawful money of the United States of America.


 


“Domestic
Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Domestic Lending Office” in the Administrative
Questionnaire of such Lender or in the Assignment and Assumption pursuant to
which it became a Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Administrative Agent.


 


“Eligible
Assignee” means (a) a
Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any
other Person (other than a natural person) approved by the Administrative
Agent and the 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 or any of the
Borrower’s Affiliates or Subsidiaries.


 


“Eligible Portfolio
Investment” means a Portfolio Investment that is subject to a perfected first
priority Lien in favor of the Administrative Agent pursuant to the Guarantee
and Security Agreement (provided any Portfolio Investment held by an Obligor
that is then subject to proceedings of the kind described in Section 7.01(g) or
7.01(h) shall be excluded from the definition of “Eligible Portfolio
Investment”).  For a Portfolio Investment
to be an “Eligible Portfolio Investment” (i) (A) in the case of any
Portfolio Investment that is carried in a securities account located in the
United States such account shall be subject to an account control agreement in
form and substance reasonably satisfactory to the Administrative Agent, or (B) such
Portfolio Investment shall otherwise be in the control (as defined in Section 8-106
of the NYUCC) of the Administrative Agent, (ii) in the case of any
Portfolio Investment that is held in a jurisdiction outside the United States
such Portfolio Investment shall be subject to a valid first and prior perfected
Lien (pursuant to the Guarantee and Security Agreement or pursuant to a
security agreement in form and substance reasonably satisfactory to the
Administrative Agent under the laws of such jurisdiction) in favor of the
Administrative Agent under the laws of such jurisdiction and (iii) in the case of
any Portfolio Investment in an Investment Fund (to the extent neither clause (i) or
(ii) above is satisfied), the Investment Fund Payment Rights in respect of
such Portfolio Investment and the related Investment Fund Payment Account shall
each be subject to a valid first and prior perfected Lien (pursuant to the
Guarantee and Security Agreement or pursuant to a security agreement in form
and substance reasonably satisfactory to the Administrative Agent under the
laws of such jurisdiction where such Portfolio Investment is held, or other
applicable law as the Administrative Agent may determine) in favor of the
Administrative Agent, and such Investment Fund Payment Account shall be subject
to an


 


5

















 


account
control agreement in form and substance reasonably satisfactory to the
Administrative Agent; provided, that in the case of any Portfolio Investment
referred to in clause (ii) or (iii) above held in a jurisdiction
outside the United States, the Administrative Agent has received a legal
opinion in form and substance reasonably satisfactory to the Administrative
Agent of counsel in such jurisdiction or jurisdictions confirming the validity
and first priority of such Lien under the laws of the relevant jurisdiction or
jurisdictions.


 


“Equity
Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person, and any warrants, options or
other rights entitling the holder thereof to purchase or acquire any such
equity interest.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.


 


“ERISA
Affiliate” means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.


 


“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA
or the regulations issued thereunder with respect to a Plan (other than an
event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412
of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any of its
ERISA Affiliates from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any of its ERISA Affiliates of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any
notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.


 


“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.


 


“Eurocurrency
Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Eurocurrency Lending Office” in the Administrative
Questionnaire of such Lender or in the Assignment and Assumption pursuant to
which it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such


 


6

















 


other office of
such Lender as such Lender may from time to time specify to the Borrower and
the Administrative Agent.


 


“Eurocurrency
Loan” means, at any time, a Loan which bears interest at rates based upon
the Eurocurrency Rate.


 


“Eurocurrency
Rate” means, for any Interest Period for each Eurocurrency Loan denominated
in a particular Currency comprising part of the same Borrowing, an interest
rate per annum equal to the rate per annum for deposits in such Currency having
a maturity closest to such Interest Period which appears on the relevant Screen
Page as of 11:00 a.m., London time, on the day two Business Days
prior to the first day of such Interest Period; provided, that, if such
rate does not appear on the relevant Screen Page for such Interest Period,
the Eurocurrency Rate for that Interest Period will be the arithmetic mean of
quotations obtained by the Administrative Agent from the Reference Banks for
the rate at which deposits in such Currency having a maturity closest to such
Interest Period are offered by the principal London office of each Reference
Bank at approximately 11:00 a.m., London time, on the day that is two
Business Days preceding the first day of such Interest Period to prime banks in
the London interbank market in a principal amount of $5,000,000 (or, in the case
of a Eurocurrency Loan denominated in an Alternate Currency, the equivalent
thereof in such Alternate Currency, rounded to the nearest 1,000 units of such
Alternate Currency);  provided,
that the Eurocurrency Rate for any Eurocurrency Loan denominated in an
Alternate Currency that is loaned by a Lender from an office in the United
Kingdom for any Interest Period shall be the sum of (i) the rate referred
to above plus (ii) the MCR Cost.


 


“Eurocurrency
Rate Reserve Percentage” of any Lender means, for any Interest Period for
any Eurocurrency Loan, the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so applicable, the daily
average of such percentages for those days in such Interest Period during which
any such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term comparable to such Interest Period.


 


“Euro” has
the meaning assigned to that term in Section 9.17.


 


“Events of
Default” has the meaning specified in Section 7.01.


 


“Excluded
Investments” means those individual Portfolio Investments or groups of
Portfolio Investments identified by the Borrower, in its sole discretion, by
notice to the Administrative Agent from time to time as not being included in
the calculation of the Borrowing Base for the relevant Tranche nor made subject
to the representations and warranties set forth in Article V, the
covenants set forth in Article VI or other provisions of the Loan Documents
applicable to Portfolio Investments that are included in the Borrowing Base for
such Tranche.


 


7














 


“Excluded
Investment Financing” means any financing incurred by an Obligor that is
secured by any Excluded Investment (and that is not secured by any of the
Collateral).


 


“Excluded Taxes”
means, with respect to any recipient of any payment to be made by or on account
of any obligation of the Borrower hereunder, Taxes imposed on or measured
by its overall net income, overall gross income or overall gross receipts
(however denominated), and franchise taxes imposed on it (in lieu of net income
taxes) or capital 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 the case of any Lender, in which its
Applicable Lending office is located.


 


“Federal Funds
Rate” means, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.


 


“Fee Letter”
means the Fee Letter dated June 5, 2007, between the Borrower and
Citigroup Global Markets Inc., providing for the payment of certain fees in
connection with this Agreement.


 


“Financial
Officer” means the chief financial officer, principal financial officer,
treasurer, controller or a director of the ultimate general partner of the
Borrower, which is the Managing Investment Partner as of the Closing Date.


 


“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 business.


 


“GAAP”
means accounting principles generally accepted in the United States as in
effect from time to time.


 


“Governmental
Authority” means the government of the United States, any other nation or
any political subdivision thereof (including Guernsey), 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.


 


“Guarantee”
of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or
pay (or to advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the


 


8

















 


purchase
of) any security for the payment thereof, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guarantee issued to support such
Indebtedness; provided that the term “Guarantee” shall not include
endorsements for collection or deposit in the ordinary course of business.


 


“Guarantee and
Security Agreement” means an agreement among the Obligors and the
Administrative Agent in substantially the form of Exhibit  B, as from
time to time amended.


 


“Guarantors”
means, at any time, collectively, those Wholly-Owned Subsidiaries of the
Borrower that have been formed by the Borrower (and identified by the Borrower
to the Administrative Agent) for the purpose of being the sole beneficial
owners of the Portfolio Investments of the Borrower, and that are parties to
the Guarantee and Security Agreement.


 


“Hedging Agreement” means any interest rate protection
agreement, foreign currency exchange agreement or other derivative transaction.


 


“Increasing
Lender” shall have the meaning assigned to that term in Section 2.05(c).


 


“Indebtedness” of
any Person means, without duplication, (a) all obligations of such Person
for borrowed money or with respect to deposits or advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest charges
are customarily paid, (d) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred
purchase price of property or services (excluding current accounts payable
incurred in the ordinary course of business), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on Property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed (the amount of such Indebtedness at any time to be
deemed to be an amount equal to the fair market value of the Property subject
to such Lien if such Indebtedness has not been assumed), (g) all
Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise,
of such Person as an account party in respect of standby letters of credit and
letters of guarantee, (j) all obligations, contingent or otherwise, of
such Person in respect of bankers’ acceptances and (k) the net liability
of such Person in respect of Hedging Agreements.  The Indebtedness of a Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.


 


9

















 


“Indebtedness for
Borrowed Money” means Indebtedness of the kind referred to in clause (a), (b) or
(h) of the definition of “Indebtedness” (or of the kind referred to in
clause (f) or (g) thereof to the extent relating to Indebtedness for
Borrowed Money).


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Indemnitee” has the meaning specified in Section 9.04(b).


 


“Interest Period”
means, for any Eurocurrency Loan, the period beginning on the date such
Eurocurrency Loan is made, or Continued or Converted from an ABR Loan, and
ending on the last day of the period selected by the Borrower pursuant to the
provisions below, and thereafter each subsequent period commencing on the last
day of the immediately preceding Interest Period therefor and ending on the
last day of the period selected by the Borrower pursuant to the provisions
below.  The duration of each Interest
Period shall be one, two, three or six months, as the Borrower may select by
notice to the Administrative Agent no later than 12:00 noon (New York time) on:


 


(i)            the
third Business Day prior to the first day of such Interest Period in the case
of a Eurocurrency Loan denominated in Dollars, or


 


(ii)           the
third Business Day prior to the first day of such Interest Period in the case
of a Eurocurrency Loan denominated in an Alternate Currency.


 


Notwithstanding the foregoing:


 


(w)          if any Interest Period would otherwise
commence before and end after the Commitment Termination Date, such Interest
Period shall end on the Commitment Termination Date,


 


(x)            each Interest Period that would
otherwise end on a day that is not a Business Day shall end on the next succeeding
Business Day, unless such next succeeding Business Day would fall in the
succeeding month, in which case such Interest Period shall end on the next
preceding Business Day,


 


(y)           each Interest Period that commences
on the last day of a month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent month) shall end on the last
Business Day of the appropriate subsequent calendar month, and


 


(z)            Interest Periods commencing on the
same day for Eurocurrency Loans comprising part of the same Borrowing shall be
of the same duration.


 


“Investment Fund” means any private equity fund,
hedge fund, fund of funds or other similar alternative investment fund.


 


“Investment Fund Holder” means any holder of Equity
Interests in an Investment Fund.


 


10

















 


“Investment Fund Payment Account” means, with
respect to any Investment Fund, an account established by the relevant
Investment Fund Holder to which payments in respect of related Investment Fund
Payment Rights are required to be directed.


 


“Investment Fund Payment Rights” means, in respect
of any Portfolio Investment in an Investment Fund, any rights of an Investment
Fund Holder to receive any distribution or payment made in respect of Equity
Interests in such Investment Fund and in respect of any sale, redemption or
other disposition thereof, including any accounts or general intangibles (as
defined in the NYUCC) constituting or representing the same and all proceeds
thereof.


 


“Investment Strategies”
means the strategies for investments by the Borrower described in Schedule VI.


 


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


 


“KKR” means
Kohlberg Kravis Roberts & Co. L.P., a Delaware limited partnership.


 


“KPE” means
KKR Private Equity Investors, L.P., a limited partnership organized under the
laws of Guernsey.


 


“KPE General
Partner” means KKR Guernsey GP Limited, a Guernsey limited company and the
general partner of KPE.


 


“KPE Parties”
means, collectively, KPE, the KPE General Partner, the Borrower, the Borrower
General Partner and the Managing Investment Partner, or their successors as the
case may be.


 


“L/C Exposure”
means, at any time, the sum of (i) the aggregate undrawn face amount of
all outstanding Letters of Credit and (ii) the aggregate amount of
unreimbursed L/C Payments under all outstanding Letters of Credit (or, if
applicable, the Dollar Equivalent thereof).


 


“L/C Payment”
means a payment by an Issuing Lender of a draft or demand drawn under a Letter
of Credit.


 


“L/C
Reimbursement Obligation” means the obligation of the Borrower to reimburse
an Issuing Lender for an L/C Payment pursuant to Section 2.02(d)(ii).


 


“L/C Related
Documents” has the meaning specified in Section 2.02(c)(i).


 


11

















 


“Lead Arrangers”
means Citigroup Global Markets Inc., Morgan Stanley and Goldman Sachs Credit
Partners L.P. as Joint Lead Arrangers and Bookrunners in connection herewith.


 


“Lender”
means each bank or other financial institution listed on the signature pages hereof
and each Person that shall become a party hereto pursuant to Section 2.05(c) or 9.06.


 


“Letter of
Credit” has the meaning specified in Section  2.02(a)(i).


 


“Letter of
Credit Facility Amount” means $200,000,000.


 


“Lien”
means, with respect to any Property, any lien on or security interest in such
Property or any other preferential arrangement with respect thereto.


 


“Loan” has
the meaning specified in Section 2.01(a)(i).


 


“Loan Documents”
means, collectively, this Agreement, the Notes, the Guarantee and Security
Agreement and the Fee Letter.


 


“Local Time”
shall mean (a) with respect to any Loan denominated or any payment to be
made in Dollars, New York time, and (b) with respect to any Eurocurrency
Loan denominated or any payment to be made in an Alternate Currency, the local
time in the Principal Financial Center for such Alternate Currency.


 


“London Banking
Day” shall mean any day on which commercial banks are open for business
(including dealings in foreign exchange and foreign currency deposits) in
London.


 


“Majority
Lenders” means, at any time, (a) Lenders holding more than 50% of the
Commitments, or (b) if the Commitments have terminated, Lenders
having collectively more than 50% of the sum of (i) aggregate amount of
the unpaid principal amount of the Loans, (ii) participations in Swing
Line Loans and (iii) L/C Exposure (computed at any time, in the case of
Loans denominated in an Alternate Currency, as the Dollar Equivalent thereof as
determined by the Administrative Agent).


 


“Managing
Investment Partner” means KKR PEI GP Limited, a Guernsey limited company
and the general partner of the Borrower General Partner.


 


“Margin Stock”
means “margin stock” within the meaning of Regulation U.


 


“Material Adverse
Effect” means a material adverse effect on (i) the business, financial
condition or operations of the Borrower or of the Obligors taken as a whole, (ii) the
ability of any Obligor to perform any of its material obligations under any
Loan Document or (iii) the material rights and remedies of the
Administrative Agent or the Lenders under any Loan Document.


 


12

















 


“Material
Indebtedness” means Indebtedness issued or incurred under any
agreement or instrument (or series of related agreements or instruments) in an
aggregate outstanding principal amount of $75,000,000 or more.  For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of a Person in respect
of any Hedging Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Person would be
required to pay if such Hedging Agreement were terminated at such time.


 


“MCR Cost”
shall mean, with respect to any Lender, in connection with Loans, if any,
denominated in an Alternate Currency that are loaned by a Lender from an office
in the United Kingdom, the cost imputed to such Lender of compliance with the
Mandatory Cost Rate requirements of the Bank of England during the relevant
period, determined in accordance with Schedule VII hereto.


 


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.


 


“New Lender
Assumption Agreement” means an assumption agreement entered into by the
Borrower and an Eligible Assignee and accepted by the Administrative Agent, in
substantially the form of Exhibit E or any other form approved by the
Administrative Agreement.


 


“Note” has
the meaning specified in Section 2.01(e).


 


“Notice of
Borrowing” has the meaning specified in Section 2.01(b)(ii).


 


“Notice of
Issuance” has the meaning specified in Section 2.02(c)(i).


 


“NYUCC”
means the Uniform Commercial Code as in effect from time to time in the State
of New York.


 


“Obligors”
means, collectively, the Borrower and the Guarantors.


 


“Other
Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment
made under any Loan Document or from the execution, delivery or enforcement of,
or otherwise with respect to, any Loan Document.


 


“Participant” has the meaning assigned to such term in Section 9.06(d).


 


“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.


 


13

















 


“Permitted
Encumbrances” means:


 


(a)  Liens
imposed by law for Taxes that are not yet due or are being contested in good
faith by appropriate proceedings;


 


(b)  carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 60 days or are being contested in
good faith by appropriate proceedings;


 


(c)  pledges and deposits made in the
ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or regulations;


 


(d)  deposits
to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations
of a like nature, in each case in the ordinary course of business;


 


(e)  Liens that are contractual rights of set-off
(i) relating to the establishment of depository relations with banks or
other financial institutions not given in connection with the issuance of
Indebtedness or (ii) relating to pooled deposit or sweep accounts to
permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business;


 


(f)  judgment
liens in respect of judgments that do not constitute an Event of Default under Section 7.01(j);
and


 


(g)  easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of the
Borrower or any Guarantor;


 


provided
that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.


 


“Person” means any natural person, corporation,
limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.


 


“Plan”
means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412
of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.


 


“Portfolio Investments”
means assets of the kinds listed in Schedule III held by any Obligor.


 


14

















 


“Portfolio
Limitations” means the portfolio limitations specified in Schedule
 IV.


 


“Principal
Financial Center” means, for any Currency, the principal financial center
in the country of issue of such Currency, as reasonably determined by the
Administrative Agent.


 


“Process Agent”
has the meaning specified in Section 9.07(d).


 


“Property”
of any Person means any property or assets, or interest therein, of such
Person.


 


“Reference
Banks” means the principal London office of each of Citibank, JPMorgan
Chase Bank, N.A. and Bank of America, N.A.


 


“Register”
has the meaning specified in Section 9.06(c).


 


“Regulations T,
U and X” means Regulations T, U and X issued by the Board of Governors of
the Federal Reserve System, as from time to time amended.


 


“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.


 


“Requirement of
Law” means, as to any Person, any statute, law, treaty, rule or
regulation or determination, order, injunction or judgment of an arbitrator or
a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
Properties or revenues.


 


“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 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).


 


“Screen Page”
means the display designated as Page 3740 or 3750, as the case may be, on
the Telerate Service (or such other page as may replace that page on
that service for the purpose of displaying London interbank offered rates of
major banks).  If at least two relevant
rates appear on said Page 3740 or 3750 with respect to an Interest Period,
the Eurocurrency Rate for that Interest Period will be based upon the
arithmetic mean of such rates.


 


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


 


15

















 


“Senior Secured
Debt to Total Assets Ratio” means, at any time, the ratio of (i) the
aggregate outstanding principal amount of Senior Secured Debt (excluding
Indebtedness under any Excluded Investment Financing) to (ii) Total Assets
(excluding any Property of the kind referred to in Section 6.02(b)(ii),
6.02(b)(iii) or 6.02(b)(iv)).


 


“Services
Agreement” means the services agreement among KKR, the Borrower, and the
KPE Parties and the other parties thereto dated April 23, 2006, as from
time to time amended.


 


“Significant
Subsidiary” means any Subsidiary that constitutes a “significant subsidiary”
under Regulation S-X promulgated by the Securities and Exchange Commission, as
in effect from time to time.


 


“Specified
Percentage” means, for each category of Portfolio Investment specified in
Schedule III the percentage specified opposite the reference to such category
in Schedule III.


 


“Subsidiary”
means, at any time, any corporation, partnership, limited liability company or
other entity of which at least a majority of the Voting Shares are at the time
directly or indirectly owned or controlled by the Borrower or one or more
Subsidiaries of the Borrower, or by the Borrower and one or more Subsidiaries
of the Borrower.


 


“Swing Line Facility Amount” means $25,000,000.


 


“Swing Line Lender” means Citibank, as lender of Swing Line
Loans hereunder.


 


“Swing Line Loan” means a loan made by the Swing Line Lender
pursuant to Section  2.03.


 


“Taxes”
means all present and future taxes, duties, levies, imposts, deductions,
charges or withholdings whatsoever with respect to any amount payable on or in
respect of any Loan Document, Loans, Notes or Letters of Credit, and all
interest, penalties and similar amounts with respect thereto, now or thereafter
imposed, assessed, levied or collected by Guernsey or any other jurisdiction
from which any amount payable under the Loan Documents is paid, or any
political subdivision or taxing authority thereof or therein, or any
organization or federation of which any of the foregoing may be a member or
associated.


 


“Third-Party
Hedge Obligations” means obligations under any Hedging Agreement entered
into by an Obligor with one or more parties who are neither Lenders nor
Affiliates of any Lender.


 


“Total Assets”
means, at any time, total assets of the Obligors on a Consolidated basis,
determined in accordance with GAAP.


 


“Total Credit
Exposure” means, for each Tranche at any time, the sum of (i) the
aggregate outstanding principal amount of the Loans of such Tranche (being the
Dollar Equivalent thereof in the case of Eurocurrency Loans denominated in an
Alternate


 


16

















 


Currency) plus
(ii) the aggregate outstanding principal amount of all Swing Line Loans of
such Tranche plus (iii) the L/C Exposure of such Tranche.


 


“Tranche”,
when used in respect of any Loan or any matter relating thereto, refers to
whether such Loan is a Tranche A Loan or a Tranche B Loan.


 


“Tranche A Applicable
Margin” means:


 


(a)           for any Tranche A ABR Loan, 0% per
annum; and


 


(b)           for any Tranche A Eurocurrency Loan,
0.75% per annum.


 


“Tranche A
Availability” means, at any time, the lesser of (a) the difference
between the Aggregate Facility Amount and the Total Credit Exposure of both
Tranches at such time and (b) the difference between the Tranche A
Borrowing Base and the Total Credit Exposure for Tranche A at such time.


 


“Tranche A L/C
Exposure” has the meaning specified in Section 2.01(a)(ii).


 


“Tranche A Loan”
has the meaning specified in Section 2.01(a)(ii).


 


“Tranche B
Applicable Margin” means:


 


(a)           for any Tranche B ABR Loan, 0% per
annum; and


 


(b)           for any Tranche B Eurocurrency Loan,
1.00% per annum.


 


“Tranche B
Availability” means, at any time, the lesser of (a) the difference
between the Aggregate Facility Amount and the Total Credit Exposure for both
Tranches at such time and (b) the difference between the Tranche B
Borrowing Base and the Total Credit Exposure for Tranche B at such time.


 


“Tranche B L/C
Exposure” has the meaning specified in Section 2.01(a)(ii).


 


“Tranche B Loan”
has the meaning specified in Section 2.01(a)(ii).


 


“Type” refers to
whether a Loan is an ABR Loan or a Eurocurrency Loan.


 


“United States”
means the United States of America.


 


“Valuation Criteria”
means the criteria set forth in Schedule V for valuing Eligible Portfolio
Securities.


 


“Value” means, on any date,
for any Eligible Portfolio Investment, the value thereof determined in
accordance with the Valuation Criteria.


 


“Voting Shares”
means, with respect to any Person, Equity Interests having by terms thereof
voting power to elect a majority of the board of directors, or other
individuals performing similar functions, of such Person.


 


17














 


“Wholly-Owned Subsidiary” means, with
respect to any Person, any Subsidiary of which all of the Equity Interests
(other than, in the case of a corporation, directors’ qualifying
shares) are directly or indirectly owned or controlled by such Person or
one or more Wholly-Owned Subsidiaries of such Person or by such Person and one
or more Wholly-Owned Subsidiaries of such Person.


 


“Withdrawal Liability” means liability
to a Multiemployer Plan as a result of a complete or partial withdrawal from
such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.


 


SECTION 1.02.  Terms Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  In the computation of periods of time from a
specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” mean “to but excluding”.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have
the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, and (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement.  For
the avoidance of doubt, references in Articles VIII and IX to the Lenders shall
include the Issuing Lender, unless the context otherwise requires.


 


SECTION 1.03.  Accounting Terms; GAAP.  Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time;  provided, that in the event the
Netherlands Minister of Finance or such other relevant Governmental Authority
with jurisdiction over KPE shall require the financial statements of KPE to be
prepared in accordance with generally accepted accounting principles in The
Netherlands (“Dutch GAAP”) or the International Financial Reporting
Standards (“IFRS”), then references to GAAP shall be to Dutch GAAP or
IFRS, as the case may be, and the Borrower and the Administrative Agent shall
agree to negotiate in good faith to make such modifications and amendments to
the provisions hereof to take into account the effect of such change;  provided  further, that if the
Borrower notifies the Administrative Agent that it requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Borrower that the Majority Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.  To enable the
ready and consistent determination of 


 


18

















 


compliance with the covenants set forth in Section 6.03,
the Borrower will cause the last day of its fiscal year to be December 31.


 


ARTICLE II



THE COMMITMENTS


 


SECTION 2.01.  The Loans.


 


(a)   (i)  Each Lender
severally agrees, on and subject to the terms and conditions of this Agreement,
to make loans to the Borrower under this Section 2.01(a)(i) (each, a “Loan”)
from time to time on any Business Day during the Availability Period, in an
aggregate principal amount at any one time outstanding up to but not exceeding
the Commitment of such Lender and, as to all Lenders, in an aggregate principal
amount at any one time outstanding up to but not exceeding the Aggregate
Borrowing Availability (or the Alternate Currency Equivalent thereof).


 


(ii)  
Each Loan and all L/C Exposure shall automatically be deemed to be a
Tranche A Loan and Tranche A L/C Exposure except to the extent that as a result
thereof the Tranche A Availability would, immediately after giving effect
thereto, be less than zero, and the excess from time to time shall
automatically be deemed to be a Tranche B Loan or Tranche B L/C Exposure, as
the case may be.


 


(iii)  ABR Loans shall be denominated in
Dollars, and Eurocurrency Loans may be denominated in Dollars or one or more
Alternate Currencies.


 


(iv)  
Anything in this Agreement to the contrary notwithstanding, (A) the
Total Credit Exposure under each Tranche shall not at any time exceed the
lesser of (x) the Borrowing Base for such Tranche and (y) the
Availability for such Tranche (without prejudice however to the provisions of Section 3.06(b) and
(c) relating to the timing of certain mandatory prepayments), and (B) the
Total Credit Exposure for both Tranches shall not at any time exceed the then
Aggregate Facility Amount.


 


(v)  
Within such limits, the Borrower may from time to time borrow under this
Section 2.01, prepay Loans in whole or in part pursuant to Section 3.06(a) and
reborrow under this Section 2.01.


 


(vi)   The Borrower shall use the
proceeds of the Loans solely for general corporate purposes, including the
acquisition and funding of investments as permitted by the Borrower Partnership
Agreement and by this Agreement.


 


(b)  Borrowing Procedure.  (i)  Each Borrowing shall be in a
minimum amount of $5,000,000  in
the case of a Borrowing of Eurocurrency Loans, or $1,000,000, in the case of a
Borrowing of ABR Loans, or in each case an integral multiple of $1,000,000 in
excess thereof (or, in the case of a Borrowing denominated in an Alternate
Currency, the Alternate Currency Equivalent thereof, rounded to the nearest
1,000 units of such Alternate Currency), and shall be made on notice by the
Borrower to the Administrative Agent not later than 11:00 a.m. (New York
time) on the third Business Day prior to the 


 


19

















 


date of such Borrowing in the case of a
Borrowing consisting of Eurocurrency Loans or not later than 11:00 a.m.
(New York time) on the Business Day of such Borrowing in the case of a
Borrowing consisting of ABR Loans, and the Administrative Agent shall give each
Lender prompt notice thereof.


 


(ii)  Each such notice of a
Borrowing (a “Notice of Borrowing”) shall be irrevocable and
binding on the Borrower and shall be in substantially the form of Exhibit C,
specifying therein the requested (1) date of such Borrowing, (2) Type
of Loans comprising such Borrowing, (3) aggregate amount of such
Borrowing, stated in Dollars, and the Currency thereof, and (4) in the
case of a Borrowing of Eurocurrency Loans, initial Interest Period for such Loans.


 


(iii)  Each
Lender shall, before 2:00 p.m. (Local Time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at the Administrative Agent’s Account, in same day
funds, such Lender’s ratable portion of such Borrowing.


 


(iv)  After the Administrative
Agent’s receipt of such funds, and subject to the satisfaction of the
applicable conditions set forth in Article IV, the Administrative Agent
will make such funds available to the Borrower by promptly crediting the
amounts so received, in like funds, to such account of the Borrower as the
Administrative Agent and the Borrower may agree.


 


(c)  Types of Loans. 
Each Borrowing and each Conversion or Continuation thereof shall consist
of Loans of the same Type (and, if such Loans are Eurocurrency Loans, having
the same Interest Period) made, Continued or Converted on the same day by
the Lenders ratably according to their Commitment Percentages.  If no election as to the Type of Loans is
specified, then the requested Loans shall be comprised of ABR Loans, and if no
Interest Period is specified with respect to any Eurocurrency Loans, then the
Borrower shall be deemed to have selected an Interest Period of one month’s
duration.


 


(d)  Accounts.  (i) 
Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan of each Tranche made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.


 


(ii)  The Administrative Agent shall
maintain accounts in which it shall record (x) the amount of each Loan of
each Tranche, the Type thereof and the Interest Period applicable thereto, (y) the
amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (z) the amount of
any sum received by the Administrative Agent hereunder for the account of the
Lenders and each Lender’s share thereof.


 


(iii)  The entries made in the
accounts maintained pursuant to this clause (d) shall be prima  facie
evidence of the existence and amounts of the obligations recorded therein; provided,
that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the 


 


20

















 


Borrower to repay the Loans made to the Borrower in accordance with the
terms of this Agreement.


 


(e)  Notes.  Any
Lender may, through the Administrative Agent, request that the Loans of each
Tranche to be made by it be evidenced by a promissory note of the
Borrower.  In such event, the Borrower
shall prepare, execute and deliver to such Lender a promissory note payable to
such Lender (or its registered assigns), substantially in the form of Exhibit A
(each, a “Note”), in the amount of the Commitment of such Lender, dated
the Closing Date and otherwise appropriately completed.


 


SECTION 2.02.  Letter Of
Credit Facility.


 


(a)  Letters of Credit.  (i)  Each Issuing Lender agrees, on and
subject to the terms and conditions of this Agreement, to issue one or more
letters of credit (each, a “Letter of Credit”) for the account of the
Borrower from time to time on any Business Day during the period from the
Closing Date until the date ten Business Days before the Commitment Termination
Date, provided, that the total L/C Exposure with respect to Letters of
Credit of both Tranches may not at any time exceed the Letter of Credit
Facility Amount.  The L/C Exposure
resulting from each Letter of Credit shall be deemed to be Tranche A L/C
Exposure or Tranche B L/C Exposure as provided in Section 2.01(a)(ii).


 


(ii)  Letters of Credit shall be
denominated in Dollars, Euros, British Pounds Sterling, Canadian Dollars or
Japanese Yen or, if agreed by the relevant Issuing Lender, any other Alternate
Currency.


 


(iii)  Anything in this Agreement to the
contrary notwithstanding, the issuance of Letters of Credit shall be subject to
the limitations set forth in Section 2.01(a)(iv).


 


(iv)  Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be revolving, and accordingly the Borrower may,
during the period referred to above, obtain Letters of Credit to replace
Letters of Credit that have expired or that have been drawn upon and
reimbursed.


 


(b)  Terms; Issuance.  (i)  Each Letter of Credit shall be a
standby letter of credit in a form reasonably satisfactory to the relevant
Issuing Lender and have a stated expiration date that is no later than the
earlier of (x) one year after its date of issuance and (y) ten
Business Days prior to the Commitment Termination Date;  provided, that a Letter of Credit with
a one-year tenor may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the Commitment Termination Date
(except that one or more Letters of Credit may expire up to one year after the
Commitment Termination Date if each such Letter of Credit has been cash
collateralized or otherwise backstopped on terms reasonably satisfactory to the
Borrower, the relevant Issuing Lender and the Administrative Agent)).


 


(ii)  No Issuing Lender shall be
obligated to issue any Letter of Credit if an order, judgment or decree of any
Governmental Authority shall by its terms purport to enjoin or 


 


21

















 


restrain such Issuing Lender from issuing
such Letter of Credit, or any law applicable to such Issuing Lender or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuing Lender shall
prohibit, or request that such Issuing Lender refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular.


 


(c)  Issuance Procedure.  (i)  Each Letter of Credit shall be
issued upon notice, given not later than 11:00 a.m. (New York time) on the
third Business Day prior to the proposed issuance date of such Letter of
Credit, by the Borrower to the relevant Issuing Lender (or such shorter notice
as shall be acceptable to such Issuing Lender), with a copy to the
Administrative Agent, and the Administrative Agent shall give to each Lender
prompt notice thereof by telecopier or email. 
Each such notice (a “Notice of Issuance”) shall be by telecopier
or email, confirmed promptly by hard copy, specifying therein the Issuing
Lender and the requested date of issuance (which shall be a Business Day) of
such Letter of Credit, its face amount and expiration date and the name and
address of the beneficiary thereof, and shall attach the proposed form thereof
(or such other information as shall be necessary to prepare such Letter of
Credit).  If requested by the applicable
Issuing Lender, the Borrower shall supply such application and agreement for
letter of credit as the relevant Issuing Lender may require in connection with
such requested Letter of Credit (“L/C Related Documents”).


 


(ii)  If the proposed Letter of Credit
complies with the requirements of this Section 2.02, such Issuing Lender
will, unless the Issuing Lender has received written notice from the
Administrative Agent at least one Business Day prior to the requested issuance,
that one or more of the applicable conditions set forth in Article IV
shall not be satisfied, make such Letter of Credit available to the Borrower as
agreed with the Borrower in connection with such issuance.  In the event and to the extent that the
provisions of any L/C Related Documents shall conflict with this Agreement, the
provisions of this Agreement shall govern.


 


(iii)  Each Issuing Lender shall
furnish (A) upon request of the Administrative Agent, copies of the
Letters of Credit issued by it hereunder, and (B) to the Administrative
Agent on the first Business Day of each fiscal quarter a written report setting
forth the Letters of Credit issued in Alternate Currencies, solely for purposes
of determining the Dollar Equivalent thereof.


 


(d)  Reimbursement; Syndicate
Participation.  (i)  Automatically
upon the issuance of each Letter of Credit, each Lender shall be deemed to have
acquired a participation therein to the extent of such Lender’s Commitment
Percentage on the terms provided in this clause (d).


 


(ii)  Upon receipt from the beneficiary
of any Letter of Credit of any notice of drawing under such Letter of Credit,
the relevant Issuing Lender shall notify the Borrower and the Administrative
Agent thereof.  Not later than 4:00 p.m.
(New York time) on the date of any L/C Payment by an Issuing Lender if the
Borrower receives notice thereof by 11:00 a.m. (New York time) on such
date and otherwise on the next Business Day (the “Honor Date”), the
Borrower agrees to reimburse such Issuing Lender directly in an amount equal to
the amount of such L/C Payment.


 


22

















 


(iii)  If the Borrower fails to so
reimburse such Issuing Lender by such time, such Issuing Lender shall promptly
notify the Administrative Agent and the Administrative Agent shall promptly
notify each Lender of the Honor Date, the unreimbursed amount of such L/C
Payment (the “Unreimbursed Amount”), and the amount of such Lender’s pro
rata share thereof.  In such
event, the Borrower shall be irrevocably deemed to have requested a Borrowing
of ABR Loans (of the same Tranche as such Letter of Credit) to be disbursed on
the Honor Date in an aggregate amount equal to the Unreimbursed Amount (without
regard to the minimum and multiples specified in Section 2.01(b)).  Any notice given by an Issuing Lender or the
Administrative Agent pursuant to this Section 2.02(d)(iii) may be
given by telephone if immediately confirmed in writing;  provided, that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.


 


(iv)  Each Lender (including any
Lender acting as an Issuing Lender) unconditionally agrees upon any notice
pursuant to Section 2.02(d)(iii) make funds available to the
Administrative Agent for the account of the relevant Issuing Lender at the
Administrative Agent’s Account in an amount equal to its Commitment Percentage
of the unpaid L/C Reimbursement Obligation not later than 1:00 p.m. (New
York time) on the Business Day specified in such notice by the Administrative
Agent, whereupon each Lender that so makes funds available shall be deemed to
have made an ABR Loan to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the relevant Issuing Lender.


 


(v)  The Borrower agrees to pay
interest on the unreimbursed amount of each L/C Reimbursement Obligation to the
relevant Issuing Lender, for each day from the date of the relevant L/C Payment
until such L/C Reimbursement Obligation is reimbursed or refinanced in full as
herein provided, at the rate provided in Section 3.02(b)(ii).


 


(vi)  Each Lender’s obligation to
make the payments provided in clause (iv) above to reimburse an Issuing
Lender for any L/C Payment shall be absolute and unconditional and shall not be
affected by (A) any setoff or counterclaim which such Lender may have
against an Issuing Lender, the Borrower or any other Person, (B) the
occurrence or continuance of a Default or any reduction or termination of the
Commitments or any of them, (C) any of the matters referred to in clause (e) below
or (D) any other circumstance whatsoever.


 


(vii)  If any Lender fails timely
to make available to the Administrative Agent for the account of an Issuing
Lender any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.02, such Issuing Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to such
Issuing Lender at a rate per annum equal to the Federal Funds Rate from time to
time in effect (without duplication of amounts paid by the Borrower under
clause (v) above).  A certificate of
such Issuing Lender submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (vii) shall be
conclusive absent manifest error.


 


23

















 


(viii)  At any time after an
Issuing Lender has made an L/C Payment and has received funds from a Lender in
respect of such payment in accordance with Section 2.02, if the
Administrative Agent receives for the account of such Issuing Lender any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including proceeds of cash
collateral applied thereto by the Administrative Agent), the Administrative
Agent will promptly distribute to such Lender its pro  rata share
thereof in the same funds as those received by the Administrative Agent.


 


(e)  Borrower Obligations
Unconditional.  The obligation of the
Borrower to reimburse each Issuing Lender for each L/C Payment under each
Letter of Credit shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever, including the following:


 


(i)  any lack of validity or
enforceability of such Letter of Credit, any Loan Document or any other
agreement or instrument relating thereto;


 


(ii)  the existence of any claim,
counterclaim, set-off, defense or other right that the Borrower may have at any
time against any beneficiary of such Letter of Credit (or any Person for whom
any such beneficiary may be acting), such Issuing Lender or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or by such Letter of Credit or any agreement or instrument relating thereto; or


 


(iii)  any sight draft, demand,
certificate or other document presented under such Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect, or any loss or delay in the
transmission or otherwise of any document required in order to obtain an L/C
Payment under such Letter of Credit; or


 


(iv)  any payment by such Issuing
Lender under such Letter of Credit against presentation of a sight draft or
certificate that does not strictly comply with the terms of such Letter of Credit
or any payment made by such Issuing Lender under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any bankruptcy,
insolvency, reorganization or similar law.


 


(f)  Issuing Lender Rights.  Each Lender and the Borrower agrees that, in making
any L/C Payment under a Letter of Credit, the relevant Issuing Lender shall not
have any responsibility to obtain any document (other than any sight draft,
certificate and other document 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 the same.  None of the Issuing Lenders, nor the
Administrative Agent, nor any of the respective correspondents, participants or
assignees of the Issuing Lender shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Majority 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 


 


24

















 


enforceability of any document
or instrument related to any Letter of Credit or L/C Related Document.  None of the Issuing Lenders, nor the
Administrative Agent, nor any of the respective correspondents, participants or
assignees of the Issuing Lender, shall be liable or responsible for any of the
matters described in Section 2.02(e); 
provided, that anything therein or elsewhere in this Agreement to
the contrary notwithstanding, the Borrower may have a claim against an Issuing
Lender, and such Issuing Lender may be liable to the Borrower, to the extent,
but only to the extent, of any direct (as opposed to special, indirect,
consequential or punitive) damages suffered by the Borrower which were directly
caused by such Issuing Lender’s willful misconduct or gross negligence.  In furtherance and not in limitation of the
foregoing, each Issuing Lender 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.


 


(g)  Applicability of ISP98 and UCP.  Unless otherwise expressly agreed by an
Issuing Lender and the Borrower when a Letter of Credit is issued, either the “International
Standby Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance) or, at the option of the Borrower, the Uniform Customs and Practice
for Documentary Credits (“UCP”), as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
Letter of Credit.


 


SECTION 2.03.  Swing Line Facility.


 


(a)           Swing
Line Loans.


 


(i)            The
Swing Line Lender agrees, on and subject to the terms and conditions of this
Agreement, to make loans to the Borrower under this Section 2.03 (each, a “Swing
Line Loan”) from time to time on any Business Day during the Availability
Period up to an aggregate principal amount at any one time outstanding not up
to but exceeding the Swing Line Facility Amount.  Each Swing Line Loan shall be deemed to be
made under and to utilize the Tranche A Commitments or, to the extent that
Tranche A Availability, after giving effect thereto is zero, the Tranche B
Commitments.


 


(ii)           Swing
Line Loans shall be denominated in Dollars. 
Each Swing Line Loan shall be in a minimum amount of $100,000.


 


(iii)          Anything
in this Agreement to the contrary notwithstanding, the making of Swing Line
Loans shall be subject to the limitations set forth in Section 2.01(a)(iv).


 


(iv)          Within
the foregoing limits and subject to the terms and conditions set forth herein,
including the conditions precedent set forth in Article IV (which shall
apply to Swing Line Loans), the Borrower may borrow, prepay and reborrow Swing
Line Loans.


 


(b)           Swing
Line Loan Borrowing Procedure.  To
request a Swing Line Loan, the Borrower shall notify the Administrative Agent
of such request by telephone (confirmed by telecopy) not later than 2:00 p.m.
(New York time) on the day of such proposed Swing Line Loan.  Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and the amount
of the requested Swing Line Loan and the Tranche under which such Swing Line
Loan shall be made.  The Administrative
Agent will promptly advise the Swing 


 


25

















 


Line Lender of
any such notice received from the Borrower. 
The Swing Line Lender shall make each Swing Line Loan available to the
Borrower by means of a credit to the general deposit account of the Borrower
with the Swing Line Lender as promptly as practicable after the receipt of such
notice on the requested date of such Swing Line Loan (and in any event not
later than 4:00 p.m. (New York time) if the Swing Line Lender receives
such notice by 2:00 p.m. (New York time)).


 


(c)           Payments
of Swing Line Loans.  The Borrower
will repay each Swing Line Loan on the fifth Business Day after the date of
such Loan, together with interest accrued thereon from the date of such Loan
until paid in full at the rates provided in Section 3.02(a)(i) (or if
applicable, Section 3.02(b)), such interest to be payable on the same
dates on which interest would be payable under Section 3.02(a)(i) (or
if applicable, Section 3.02(b)).


 


(d)           Participations by
Lenders in Swing Line Loans.


 


(i)  The Swing Line Lender may, by
written notice given to the Administrative Agent not later than 10:00 a.m.
(New York time) on any Business Day, require the Lenders to acquire
participations on such Business Day in all or a portion of the Swing Line Loans
outstanding.  Such notice to the
Administrative Agent shall specify the aggregate amount of Swing Line Loans in
which the Lenders will participate. 
Promptly upon receipt of such notice, the Administrative Agent will give
notice thereof to each Lender, specifying in such notice the amount of such
Lender’s pro  rata share of such Swing Line Loan or Loans.  Each Lender agrees, upon receipt of notice as
provided above in this paragraph, to pay to the Administrative Agent, for
account of the Swing Line Lender, such Lender’s Commitment Percentage of such
Swing Line Loan or Loans.


 


(ii)           Each
Lender acknowledges and agrees that its obligation to acquire participations in
Swing Line Loans pursuant to this clause (d) is absolute and
unconditional and shall not be affected by (A) any setoff or counterclaim
which such Lender may have against the Swing Line Bank, the Borrower or any
other Person, (B) the occurrence or continuance of a Default or reduction
or termination of the Commitments or any of them or (C) any other
circumstance whatsoever.


 


(iii)          Each
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 3.07
with respect to Loans made by such Lender (and Section 3.07 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Swing Line Lender the amounts so
received by it from the Lenders.


 


(iv)          The
Administrative Agent shall notify the Borrower of any participations in any
Swing Line Loan acquired pursuant to this clause (d), and thereafter
payments in respect of such Swing Line Loan shall be made to the Administrative
Agent and not to the Swing Line Lender. 
Any amounts received by the Swing Line Lender from the Borrower (or
other party on behalf of the Borrower) in respect of a Swing Line Loan after
receipt by the Swing Line Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the Swing Line Lender, as their interests may
appear (and if all or any portion of any such amount 


 


26

















 


received by the Administrative Agent is recovered or must be restored,
the corresponding payments to the Lenders shall be rescinded and the amount
thereof restored, without interest).  The
purchase of participations in a Swing Line Loan pursuant to this paragraph
shall not relieve the Borrower of any default in the payment thereof.


 


SECTION 2.04.  Fees.


 


(a)  Agency Fee.  The Borrower agrees to pay to the
Administrative Agent, for the Administrative Agent’s own account, an
administrative agency fee at the times and in the amounts set forth in the Fee
Letter.


 


(b)  Commitment Fee. 
The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a commitment fee on the daily average unutilized amount of such
Lender’s Commitment, for each day during the period from the date hereof until
the Commitment Termination Date, at a rate of 0.20% per annum, payable
quarterly in arrears on the last Business Day of March, June, September and
December of each year, on the Commitment Termination Date and on the date
of termination of the Commitments;  provided,
that solely for purposes of this Section 2.04(b) the making of a
Swing Line Loan shall not be deemed to constitute a utilization of the
Commitments.


 


(c)  Letter of Credit Fees.


 


(i)  The Borrower agrees to pay to
the Administrative Agent, for the pro  rata account of the Lenders
based on their respective Commitment Percentages, a commission on the average
daily undrawn amount of each outstanding Letter of Credit at a rate equal to
the Applicable Margin then in effect for Eurocurrency Loans of the relevant
Tranche (minus the amount of the fronting fee referred to below),
payable quarterly in arrears on the last Business Day of March, June, September and
December of each year and on the Commitment Termination Date, commencing
on the first such date after the date hereof.


 


(ii)  The Borrower agrees to pay to
each Issuing Lender, for the sole account of such Issuing Lender, (x) a
fronting fee with respect to each Letter of Credit issued by such Issuing
Lender, payable quarterly in arrears on the last Business Day of each March,
June, September and December and on the Commitment Termination Date,
in an amount equal to 0.125% per annum of the average daily available amount of
such Letter of Credit and (y) such customary fees and charges in connection
with the issuance or administration of each Letter of Credit issued by such
Issuing Lender as may be agreed in writing between the Borrower and such
Issuing Lender from time to time.  The
Issuing Lender will notify the Borrower of any and all such fees and charges
payable under this Section.


 


SECTION 2.05.  Changes of
Commitments.


 


(a)   Commitment
Termination Date.  The Commitment of
each Lender shall be automatically reduced to zero on the Commitment
Termination Date.


 


27














 


(b)   Commitment
Termination or Reduction.  The
Borrower shall have the right, upon at least three Business Days’ notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the
unused portions of the Commitments of either or both of the Tranches, provided,
that each partial reduction shall be in a minimum aggregate amount, as to each
Tranche, of $5,000,000.  Once terminated
or reduced, the Commitments may not be reinstated.


 


(c)  
Commitment Increase.  The
Borrower may, by giving at least 15 Business Days’ notice to the Administrative
Agent, propose that the Aggregate Facility Amount be increased (each such
proposed increase being a “Commitment Increase”), through an increase of
the Commitment of one or more existing Lenders (each an “Increasing Lender”)
and/or the addition of one or more Persons (who must be Eligible Assignees) as
assuming Lenders (each an “Assuming Lender”), as the Borrower may
determine, all effective as of a date (the “Commitment Increase Date”)
that shall be specified in such notice and that shall be prior to the
Commitment Termination Date; provided the following limitations shall
apply:


 


(A) the
Borrower may not propose more than two Commitment Increases during any calendar
quarter,


 


(B) the
proposed Commitment Increase in respect of the Commitment of any Increasing
Lender or any Assuming Lender shall for each Commitment Increase Date be no
less than $100,000,000,


 


(C)  the
Aggregate Facility Amount may not in any event at any time exceed
$2,000,000,000,


 


(D)  no
Default or Event of Default shall have occurred and be continuing on the
relevant Commitment Increase Date or shall result from the proposed Commitment
Increase, and


 


(E)  the representations and warranties
in Article V shall be true in all material respects on and as of the
Commitment Increase Date as if made on and as of such date.


 


The Administrative Agent shall notify the Lenders of a proposed
Commitment Increase promptly upon its receipt of notice from the Borrower with
respect thereto.  Each Lender will
consider in good faith any such proposed Commitment Increase, provided that it
shall be in each Lender’s sole discretion whether to agree to increase its
Commitment hereunder in connection therewith. 
No later than 10 Business Days after its receipt of the Borrower’s
notice proposing a Commitment Increase, each Lender that is willing to increase
its Commitment hereunder shall deliver to the Administrative Agent a notice in
which such Lender shall set forth the maximum increase in its Commitment to
which such Lender is willing to agree (any Lender not responding by such time
to be deemed not to have agreed to such increase in its Commitment), and the
Administrative Agent shall promptly provide to the Borrower a copy of such
Increasing Lender’s notice.  The
Administrative Agent shall cooperate with the Borrower in discussions with the
Lenders and Eligible Assignees with a view to arranging any proposed Commitment
Increase 


 


28

















 


through the increase of the Commitments of one or more of the Lenders
and/or the addition of one or more Eligible Assignees as Assuming Lenders and
the Administrative Agent shall use its reasonable efforts to secure any such
proposed Commitment Increase (provided that any such addition of an
Eligible Assignee as an Assuming Lender shall be subject to the consent of the
Administrative Agent and the Issuing Lender, which consent shall not be
unreasonably withheld or delayed); provided, that any allocations of any
increase of Commitments hereunder (including any allocation as between
Increasing Lenders and Assuming Lenders) shall be determined by the Borrower in
its sole discretion.


 


 (ii)  If agreement is reached prior to the relevant
Commitment Increase Date with any Increasing Lenders and Assuming Lenders, if
any, as to a Commitment Increase (the amount of which may be less than (subject
to the limitation set forth in clause (i)(B) of this Section 2.05(c)) but not
greater than that amount specified in the applicable notice from the Borrower),
the Borrower shall deliver, no later than one Business Day prior to such
Commitment Increase Date, a notice thereof in reasonable detail to the
Administrative Agent (and the Administrative Agent shall give notice thereof to
the Lenders, including any Assuming Lenders). 
The Assuming Lenders, if any, shall become Lenders hereunder as of such
Commitment Increase Date and the Commitments of any Increasing Lenders and such
Assuming Lenders shall become or be, as the case may be, as of such Commitment
Increase Date, the amounts specified in the notice delivered by the Borrower to
the Administrative Agent; provided, that:


 


(x)  the
Administrative Agent shall have received at or prior to 9:00 a.m. (New
York time) on such Commitment Increase Date (A) if requested by any
Assuming Lender or Increasing Lender, a duly executed Note, dated as of such
Commitment Increase Date, for such Assuming Lender or Increasing Lender, dated
the date to which interest on the existing Notes shall have been paid for each
Increasing Lender, in each case in an amount equal to the Commitment of each
such Assuming Lender and such Increasing Lender after giving effect to such
Commitment Increase and (B) a certificate of a Financial Officer stating
that each of the applicable conditions to such Commitment Increase set forth in
this Section 2.05(c) has been satisfied;


 


(y)  with respect to each Assuming
Lender, the Administrative Agent shall have received, at or prior to 9:00 a.m.
(New York time) on such Commitment Increase Date, an appropriate New Lender
Assumption Agreement, duly executed by such Assuming Lender and the Borrower
and acknowledged by the Administrative Agent; and


 


(z)  each Increasing Lender shall have
delivered to the Administrative Agent, at or prior to 9:00 a.m. (New York
time) on such Commitment Increase Date, confirmation in writing satisfactory to
the Administrative Agent as to its increased Commitment, with a copy of such
confirmation to the Borrower.


 


(iii)  Upon its receipt of confirmation
from a Lender that it is increasing its Commitment hereunder, together with the
appropriate Note and certificate referred to in clause (ii)(x) above in
each case, if any, the Administrative Agent shall (A) record the 


 


29

















 


information contained therein in the Register and (B) give prompt
notice thereof to the Borrower.  Upon its
receipt of a New Lender Assumption Agreement as provided above executed by an
Assuming Lender representing that it is an Eligible Assignee, together with the
appropriate Note and certificate referred to in clause (ii)(x) above, the
Administrative Agent shall accept such assumption agreement, record the
information contained therein in the Register and (z) give prompt notice
thereof to the Borrower.


 


(iv)  In the event that the
Administrative Agent shall not have received notice from the Borrower as to any
agreement with respect to a Commitment Increase on or prior to the relevant
Commitment Increase Date or the Borrower shall, by notice to the Administrative
Agent prior to such Commitment Increase Date, withdraw its proposal for a
Commitment Increase or any of the actions provided for above in clauses (ii)(x) through
(ii)(z) shall not have occurred by 9:00 a.m. (New York time) on such
Commitment Increase Date, such proposal by the Borrower shall be deemed not to
have been made.  In such event, any
actions theretofore taken under clauses (ii)(x) through (ii)(z) above
shall be deemed to be of no effect and all the rights and obligations of the
parties shall continue as if no such proposal had been made.


 


(v)  In the event that the
Administrative Agent shall have received notice from the Borrower as to any
agreement with respect to a Commitment Increase on or prior to the relevant
Commitment Increase Date and the actions provided for in clauses (ii)(x) through
(ii)(z) above shall have occurred by 9:00 a.m. (New York time) on
such Commitment Increase Date, the Administrative Agent shall notify the
Lenders (including any Assuming Lenders) of the occurrence of such Commitment
Increase Date promptly and in any event by 10:00 a.m. (New York time) on
such date by facsimile transmission or electronic messaging system.  Each Increasing Lender and each Assuming
Lender shall, before 11:00 a.m. (New York time) on such Commitment Increase
Date, make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent’s Account for Loans
denominated in the relevant Currency, in same day funds, an amount equal to
such Increasing Lender’s or such Assuming Lender’s ratable portion of the
Borrowings then outstanding (calculated based on its Commitment Percentage
after giving effect to the relevant Commitment Increase).  After the Administrative Agent’s receipt of
such funds, the Administrative Agent will promptly thereafter cause to be
distributed like funds to the Lenders for the account of their respective
Applicable Lending Offices in an amount to each Lender such that the aggregate
amount of the outstanding Loans owing to each Lender after giving effect to
such distribution equals such Lender’s ratable portion of the Borrowings then
outstanding (calculated based on its Commitment as a percentage of the
aggregate Commitments outstanding after giving effect to the relevant
Commitment Increase).


 


(vi)  The Letter of Credit Facility
Amount will automatically be increased proportionately with and at the same
time as each Commitment Increase.


 


30

















 


ARTICLE III



PAYMENTS


 


SECTION 3.01.  Repayment.  The Borrower agrees to repay the full
principal amount of each Loan by each Lender, and each such Loan shall mature,
on the Commitment Termination Date.


 


SECTION 3.02.  Interest.


 


(a)  Ordinary Interest.  The Borrower agrees to pay interest on the
unpaid principal amount of each Loan, from the date of such Loan until such
principal amount shall be paid in full, at the following rates per annum:


 


(i)  ABR Loans.  While such Loan is an ABR Loan, a rate per
annum equal to the ABR in effect from time to time plus the Tranche A
Applicable Margin for ABR Loans as in effect from time to time, to the extent
such Loan is a Tranche A ABR Loan, or plus the Tranche B Applicable
Margin for ABR Loans as in effect from time to time, to the extent such Loan is
a Tranche B ABR Loan, interest under this clause (i) to be payable
quarterly in arrears on the last Business Day of each March, June, September and
December and on the date such ABR Loan shall be Converted and on the date
of each payment of principal thereof.


 


(ii)  Eurocurrency Loans.  While such Loan is a Eurocurrency Loan, a
rate per annum for each Interest Period for such Loan equal to the Eurocurrency
Rate for such Interest Period plus the Tranche A Applicable Margin for
Eurocurrency Loans as in effect from time to time, to the extent such Loan is a
Tranche A Eurocurrency Loan, or plus the Tranche B Applicable Margin for
Eurocurrency Loans as in effect from time to time, to the extent such Loan is a
Tranche B Eurocurrency Loan, interest under this clause (ii) to be payable
on the last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on the date three months after the first
day of such Interest Period, and on each date on which such Eurocurrency Loan
shall be Continued or Converted and on the date of each payment of principal
thereof.


 


(b)  Default Interest. 
Notwithstanding the foregoing, the Borrower shall pay interest on:


 


(i)  any principal of any Loan that
is not paid when due (whether at scheduled maturity, by mandatory prepayment or
otherwise), payable on demand and in any event on the date such amount shall be
paid, at a rate per annum equal at all times to two percent (2%) per annum
above the rate per annum required to be paid on such Loan pursuant to said Section 3.02(a)(i) or
(a)(ii), as applicable; and


 


(ii)  any interest, fee or other
amount thereof that is not paid when due, from the due date thereof until such
amount shall be paid, payable on demand and in any event on the date such
amount shall be paid in full, at a rate per annum equal at all times to two
percent (2%) per annum above the rate per annum required to be paid on
Tranche A ABR 


 


31

















 


Loans or Tranche B ABR Loans, as the case may
be, pursuant to Section 3.02(a)(i) above.


 


SECTION 3.03.  Eurocurrency Reserves.  The Borrower shall pay to each Lender
additional interest on the unpaid principal amount of each Eurocurrency Loan of
such Lender, from the date of such Loan until such principal amount is paid in full,
at an interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurocurrency Rate for each Interest Period for such
Loan from (ii) the rate obtained by dividing such Eurocurrency Rate by a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage
of such Lender for such Interest Period, payable on each date on which interest
is payable on such Loan.  Such additional
interest shall be determined by such Lender and notified to the Borrower
through the Administrative Agent.


 


SECTION 3.04.  Interest Rate Determinations.


 


(a)  Reference Banks. 
Each Reference Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining each Eurocurrency Rate if so
requested by the Administrative Agent. 
If any one or more of the Reference Banks shall not furnish such timely
information to the Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such interest rate on
the basis of timely information furnished by the remaining Reference Banks
(subject to the provisions set forth in the definition of “Eurocurrency Rate”
in Section 1.01 and to clause (c) below).


 


(b)  Notice of Interest Rates.  The Administrative Agent shall give prompt
notice to the Borrower and the Lenders of the applicable interest rates
determined by the Administrative Agent.


 


(c)  Unavailability of Rate.  If the relevant rates required to determine
the Eurocurrency Rate do not appear on the Screen Page and fewer than two
Reference Banks furnish timely information to the Administrative Agent for
determining such rate for any Interest Period for any Eurocurrency Loans, the
Administrative Agent shall forthwith notify the Borrower and the Lenders that
the interest rate cannot be determined for such Eurocurrency Loans for such
Interest Period, whereupon:


 


(i)  each such Eurocurrency Loan
will automatically, on the last day of the then current Interest Period
therefor, be Converted into an ABR Loan; and


 


(ii)  the obligation of the Lenders
to make or Continue, or to Convert Loans into, Eurocurrency Loans shall be
suspended until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.


 


(d)  Eurocurrency Rate Inadequate.  If, with respect to any Eurocurrency Loans,
the Majority Lenders notify the Administrative Agent that the Eurocurrency Rate
for any Interest Period for such Loans will not fairly reflect the cost to such
Majority Lenders of making, funding or maintaining their respective
Eurocurrency Loans for such Interest Period, the Administrative Agent shall so
notify the Borrower and the Lenders, whereupon:


 


32

















 


(i)  any Notice of Borrowing requesting
a Borrowing comprised of Eurocurrency Loans shall be ineffective;


 


(ii)  each Eurocurrency Loan will
automatically, on the last day of the then current Interest Period therefor, be
Converted into an ABR Loan; and


 


(iii)  the obligation of the
Lenders to make or Continue, or to Convert Loans into, Eurocurrency Loans shall
be suspended until the Administrative Agent shall notify the Borrower and such
Lenders that the circumstances causing such suspension no longer exist.


 


(e)  Certain Mandatory Conversions.


 


(i)  Upon the occurrence and during the
continuance of any Event of Default, (x) each Eurocurrency Loan will
automatically, on the last day of the then current Interest Period therefor, be
Converted into an ABR Loan and (y) the obligation of the Lenders to make
or Continue, or to Convert Loans into, Eurocurrency Loans shall be suspended.


 


(ii)  If this Agreement shall require
that any Eurocurrency Loan be Converted to an ABR Loan and such Eurocurrency
Loan is denominated in an Alternate Currency, the Borrower shall on the last
day of the current Interest Period pay or prepay the full amount of such
Eurocurrency Loan (provided, that the foregoing shall not prevent the
Borrower from borrowing additional Loans to the extent otherwise permitted
hereunder).


 


SECTION 3.05.  Voluntary Conversion or Continuation of
Loans.


 


(a)  Conversions. 
The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 11:00 a.m. (New York time) on the
third Business Day prior to the date of the proposed Conversion, Convert all or
any portion of the outstanding Loans of one Type comprising part of the same
Borrowing into Loans of the other Type;  provided,
that in the case of any such Conversion of a Eurocurrency Loan into an ABR Loan
on a day other than the last day of an Interest Period therefor, the Borrower
shall promptly reimburse the Lenders the amounts provided in Section 3.12
relating to such prepayment.  Each such
notice of a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Loans to be Converted, and (z) if
such Conversion is into Eurocurrency Loans, the duration of the initial
Interest Period for each such Loan.  Each
notice of Conversion shall be irrevocable and binding on the Borrower.


 


(b)  Continuations. 
The Borrower may, on any Business Day, upon notice given to the
Administrative Agent not later than 11:00 a.m. (New York time) on the
third Business Day prior to the date of the proposed Continuation, Continue all
or any portion of the outstanding Eurocurrency Loans comprising part of the
same Borrowing for one or more Interest Periods.  Each such notice of a Continuation shall,
within the restrictions specified above, specify (i) the date of such
Continuation, (ii) the Eurocurrency Loans to be Continued and (y) the
duration of the next Interest Period for the Eurocurrency Loans subject to such
Continuation.  Each notice of
Continuation shall be irrevocable and binding on the Borrower.


 


33














 


SECTION 3.06.  Prepayments of Loans.


 


(a)  Optional Prepayment.  The Borrower may, on notice (given not later
than 11:00 a.m. (New York time) on the second Business Day prior to
the date of the proposed prepayment of Loans (in the case of Eurocurrency Loans) or
given not later than 11:00 a.m. (New York time) on the Business Day
of the proposed prepayment of Loans (in the case of ABR Loans)), stating the
proposed date and aggregate principal amount (stated in Dollars) of the
prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Loans comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however,
that (i) each partial prepayment shall be in an aggregate principal amount
not less than $5,000,000 or integral multiples of $1,000,000 in excess thereof
(or, in the case of Loans denominated in an Alternate Currency, the Alternate
Currency Equivalent thereof in such Alternate Currency) and (ii) in the
case of any such prepayment of a Eurocurrency Loan on a day other than the last
day of an Interest Period therefor, the Borrower shall reimburse the Lenders
the amounts provided in Section 3.12 relating to such prepayment.  No optional prepayment of Loans shall be
permitted except as provided in this clause (a).


 


(b)           Borrowing
Base.  (i)  If at any time
the Total Credit Exposure for either Tranche exceeds the Borrowing Base for
such Tranche (after giving effect to any reallocation referred to below), the
Borrower will, within 30 days of providing notice thereof to the Administrative
Agent in accordance with Section 6.01(a)(v), prepay Loans and/or Swing
Line Loans of such Tranche or, if no such Loans and no Swing Line Loans are
outstanding, provide cash collateral for the outstanding L/C Exposure of such
Tranche pursuant to documentation reasonably satisfactory to the Administrative
Agent, in such aggregate amount as may be required to cause such Total Credit
Exposure to be equal to or less than such Borrowing Base.  Total Credit Exposure shall be deemed
reallocated from Tranche B to Tranche A to the extent an updated Borrowing Base
Certificate delivered by the Borrower to the Administrative Agent demonstrates
that there is adequate Tranche A Availability for such reallocation, such
reallocation to be effective on the date such Borrowing Base is certified.


 


(ii)           Anything
herein to the contrary notwithstanding, the Borrower may not designate any
Portfolio Investment included in the Borrowing Base as an Excluded Investment
(or cause any Eligible Portfolio Investment included in the Borrowing Base to
cease to be subject to a perfected first priority Lien in favor of the
Administrative Agent) if, after giving pro  forma effect to such
designation and any related Excluded Investment Financing, the Total Credit
Exposure for either Tranche would exceed the Borrowing Base for such Tranche
(or if as a result of such designation any excess of such Borrowing Base over
such Total Credit Exposure would be increased).


 


(c)  Alternate Currency Revaluation.  If at any time by reason of fluctuations in
foreign exchange rates (1) the Total Credit Exposure exceeds (2) 105%
of the then aggregate amount of the Commitments, and the Majority Lenders shall
so request, the Administrative Agent shall use all reasonable efforts to give
prompt written notice thereof to the Borrower, specifying the amount to be
prepaid under this clause (c), and the Borrower shall prepay Loans and/or Swing
Line Loans or, if no Loans and no Swing Line Loans are outstanding, provide
cash collateral for or otherwise backstop outstanding Letters of Credit on
terms reasonably 


 


34

















 


satisfactory to the Borrower, the
Issuing Lender and the Administrative Agent, in such aggregate amount as may be
required to cause the Total Credit Exposure (treating such cash collaterization
or other backstopping for purposes hereof as a reduction in such Exposure) to
be equal to or less than the aggregate amount of the Commitments, such payments
or other measures to be made within 30 days of demand or, in the case of
prepayment of Eurocurrency Loans, on the date that is the earlier of (i) the
last day of the then current Interest Period therefor and (ii) the last
Business Day of the first full calendar month after such revaluation, provided
that any such prepayment shall be accompanied by any amounts payable under Section 3.12.  The determinations of the Administrative
Agent hereunder shall be conclusive and binding on the Borrower in the absence
of manifest error.


 


SECTION 3.07.  Payments; Computations; Etc.


 


(a)           Pro
Rata Payments.  The Loans comprising
each Borrowing shall be made pro  rata among the Lenders based on
their respective Commitment Percentages. 
All payments of principal of and interest on the Loans shall be made for
the pro  rata account of the Lenders based on the respective
outstanding principal amounts thereof, and all payments of commitment fees and
letter of credit commission shall be made for the pro  rata
account of the Lenders based on their respective Commitment Percentages.


 


(b)           Lenders’
Obligations Several.  The obligations
of the Lenders under this Agreement are several and the failure of any Lender
to make any Loan or any payment required to be made by it hereunder shall not
relieve any other Lender of its obligations hereunder, nor shall any Lender be
responsible for any other Lender’s failure to make any Loan required to be made
by such other Lender.  The amounts
payable at any time hereunder shall be a separate and independent debt and each
Lender shall be entitled to protect and enforce its rights under this
Agreement, and it shall not be necessary for any other Lender to be joined as
an additional party in any proceedings for such purpose.


 


(c)           Currencies.  All payments by the Borrower of or in respect
of principal of and interest on and other amounts directly relating to any Loan
that is denominated in an Alternate Currency shall be made in such Alternate
Currency.  All payments of principal and
interest on any Loan denominated in Dollars, and any Swing Line Loan, all
payments in respect of any Letter of Credit, and all payments of fees payable
pursuant to Section 2.04(c), commitment fees and agency fees hereunder and
all other payments by the Borrower provided for in this Agreement, except as
provided in the preceding sentence, shall be made in Dollars.


 


(d)  Payments.


 


(i)  The Borrower shall make each
payment hereunder and under each other Loan Document without set-off or
counterclaim to the Administrative Agent at the Administrative Agent’s Account
in the Principal Financial Center for the relevant Currency not later than
11:00 a.m. Local Time on the due date of such payment (each such payment
made after such time on such date to be deemed to have been made on the next
Business Day).


 


(ii)  The Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest ratably to the Lenders as provided in 


 


35

















 


Section 3.07(a) for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement.  Upon its acceptance of an
Assignment and Assumption and recording of the information contained therein in
the Register pursuant to Section 9.06(c), from and after the assignment
date set forth therein, the Administrative Agent shall remit all payments
hereunder and under the Notes in respect of the interest assigned thereby to
the Lender assignee thereunder, and the parties to such Assignment and
Assumption shall make all appropriate adjustments in such payments for periods
prior to such assignment date directly between themselves.


 


(e)  Computations. 
All computations of interest based on the ABR (except any Federal Funds
Rate component thereof) shall be made by the Administrative Agent on the basis
of a year of 365 or 366 days, as the case may be, for the actual number of days
(including the first day but excluding the last day) occurring in the
period for which such interest is payable. 
All computations of interest based on the Eurocurrency Rate or the
Federal Funds Rate and of commitment fee shall be made by the Administrative
Agent, and any computations of amounts payable pursuant to Section 3.03,
shall be made on the basis of a year of 360 days, for the actual number of days
(including the first day but excluding the last day) occurring in the
period for which such interest or other amount is payable.  Each determination by the Administrative
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.


 


(f)  Payment Dates. 
Whenever any payment hereunder or under the Notes would be due on a day
other than a Business Day, such due date shall be extended to the next
succeeding Business Day, and any such extension of such due date shall in such
case be included in the computation of interest;  provided, that if such extension would
cause payment of principal or interest in respect of Eurocurrency Loans to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.


 


(g)  Presumption by Administrative Agent.


 


(i)            Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed time of any 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 at such time in
accordance with Section 2.01(b) 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 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 (x) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation and (y) in the case of a payment to be made by the
Borrower, the interest rate applicable to ABR Loans.  If the Borrower and such Lender shall pay
such interest to the Administrative Agent for the same or an overlapping
period, the 


 


36

















 


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 Loan 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.


 


(ii)           Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the
account of the Lenders hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. 
In such event, if the Borrower has not in fact made such payment, then
each of the Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation
(if such Loan is denominated in Dollars) or at the overnight London Interbank
offered rate for the relevant Currency (if such Loan is denominated in an
Alternate Currency).


 


SECTION 3.08.  Sharing of Payments, Etc.  If any 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 its Loans or other obligations hereunder
resulting in such Lender’s receiving payment of a proportion of the aggregate
amount of its Loans and accrued interest thereon or other such obligations
greater than its pro  rata share thereof as provided herein, then
the 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 Loans and such other obligations of the other
Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided, that:


 


(i)  if any such participation is
purchased and all or any portion of the related payment is recovered, such
participation shall be rescinded and the purchase price restored to the extent
of such recovery, without interest; and


 


(ii)  the provisions of this
subsection shall not be construed to apply to (x) any payment made by
the Borrower pursuant to and in accordance with the express terms of this
Agreement or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans other than to the
Borrower or any Subsidiary thereof (as to which the provisions of this
subsection shall apply).


 


The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such 


 


37

















 


participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.


 


SECTION 3.09.  Increased Costs.


 


(a)  Eurocurrency Costs.  If any Change in Law shall:


 


(i)  impose, modify or deem
applicable any reserve, special deposit, compulsory loan, insurance charge or
similar requirement against assets of, deposits with or for the account of, or
credit extended in by, any Lender (except any reserve requirement reflected in
the Eurocurrency Rate Reserve Percentage); or


 


(ii)  impose on any Lender or the
London interbank market any other condition, cost or expense affecting or
Eurocurrency Loans made by such Lender;


 


and the result of any of the foregoing shall
be to increase the cost to such Lender of making or maintaining any
Eurocurrency Loan (or of maintaining its obligation to make any Eurocurrency
Loan), or to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or any other amount) in respect
of Eurocurrency Loans then, from time to time upon request of such Lender, the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction
suffered.  This Section 3.09 shall
not apply to matters covered by Section 3.11 relating to Taxes.


 


(b)  Capital Requirements.  If any Lender determines that any Change in
Law affecting such Lender or any lending office of such Lender or such Lender’s
holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender’s capital or on the
capital of such Lender’s holding company as a consequence of this Agreement,
the Commitments of such Lender or the Loans made by such Lender to a level
below that which such Lender or such Lender’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s
policies and the policies of such Lender’s holding company with respect to
capital adequacy), then from time to time upon request of such Lender, the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender’s holding company for such reduction.


 


(c)  Certificates for Reimbursement.  A certificate of any Lender setting forth the
amount or amounts and a reasonable basis for the determination thereof
necessary to compensate such Lender or its holding company, as the case may be,
as specified in clauses (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 Business Days after
receipt thereof.


 


(d)  Delay in Requests.  Failure or delay on the part of any Lender to
demand compensation pursuant to this Section shall not constitute a waiver
of such Lender’s right to demand such compensation, provided, that the
Borrower shall not be required to compensate a Lender pursuant to this Section for
any increased costs incurred or reductions suffered more than 180 days prior to
the date that such Lender notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s intention to
claim compensation 


 


38

















 


therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof).


 


SECTION 3.10.  Illegality.  Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for such Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make or Continue
Eurocurrency Loans or to fund or otherwise maintain Eurocurrency Loans
hereunder, (i) the obligation of such Lender to make or Continue, or to
Convert Loans into, Eurocurrency Loans shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist and (ii) each
Eurocurrency Loan of such Lender shall convert into an ABR Loan at the end of
the then current Interest Period for such Eurocurrency Loan.


 


SECTION 3.11.  Taxes.


 


(a)  All payments on account of the principal of and interest
on the Loans and the Notes, fees and all other amounts whatsoever payable by
the Borrower under the Loan Documents, including amounts payable under
paragraph (b) of this Section 3.11, shall be made free and clear of
and without reduction or liability for Indemnified Taxes.


 


(b)  The Borrower shall indemnify the Administrative Agent
and each Lender (including each Issuing Lender) against, and reimburse them
upon demand for, any Indemnified Taxes paid at any time by them and any loss,
liability, claim or expense, including interest, penalties and legal fees, that
they may incur at any time arising out of or in connection with any failure of
the Borrower to make any payment of Indemnified Taxes when due.


 


(c)  In the event that the Borrower, any Person making a
payment hereunder on behalf of the Borrower or the Administrative Agent shall
be required by applicable law, decree or regulation to deduct or withhold
Indemnified Taxes from any amounts payable on, under or in respect of this
Agreement, the Loans or any Loan Document, the Borrower shall promptly pay the
Person entitled to such amount such additional amounts as may be required,
after the deduction or withholding of Indemnified Taxes, to enable such Person
to receive from the Borrower on the due date thereof an amount equal to the
full amount stated to be payable to such Person.


 


(d)  The Borrower shall furnish to the Administrative Agent
original or certified copies of official tax receipts in respect of each
payment of Indemnified Taxes required under this Section 3.11, as soon as
practicable (and in any event no later than 45 days) after the date such
payment is made, and the Borrower shall promptly furnish to the Administrative
Agent at its request or at the request of any Lender (through the
Administrative Agent) any other information, documents and receipts that the
Administrative Agent or such Lender may reasonably require to establish that
full and timely payment has been made of all Indemnified Taxes required to be
paid under this Section 3.11.


 


(e)  The Borrower agrees to pay all present and future stamp,
court or documentary taxes and any other excise taxes, charges or similar
levies and any related interest 


 


39

















 


or penalties incidental thereto
imposed by Guernsey, or any jurisdiction from which any amount payable
hereunder is made, or any municipality or other political subdivision or taxing
authority thereof or therein which arises from any payment made by the Borrower
under any Loan Document or from the execution, delivery, enforcement or
registration of any Loan Document (hereinafter referred to as “Other
Applicable Taxes”).


 


(f)  If the Administrative Agent, any Lender or the Issuing Lender
determines, in its sole discretion, that it has received a refund or credit (in
lieu of such refund) of any Taxes or Other 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 3.11, 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 3.11
with respect to the Taxes of Other Taxes giving rise to such refund), net of
all reasonable out-of-pocket expenses of the Administrative Agent, any Lender
or the Issuing Lender, 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, any Lender or the Issuing Lender, 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, any Lender or the
Issuing Lender in the event the Administrative Agent, any Lender or the Issuing
Lender is required to repay such refund to such Governmental Authority.  This subsection shall not be construed to
require the Administrative Agent, any Lender or the Issuing Lender to make
available its tax returns or its books or records (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other
Person.


 


(g)  If pursuant to this Section 3.11 the Borrower is
required to pay to or for the account of any Lender any additional amounts in
excess of such additional amounts payable on the date hereof, then such Lender
shall use commercially reasonable efforts to change the jurisdiction of its
Applicable Lending Office if, in the sole and absolute judgment of such Lender,
such change (i) would eliminate or reduce any such excess additional
amounts and (ii) would not otherwise be materially disadvantageous to such
Lender.


 


SECTION 3.12.  Break
Funding Payments.  The Borrower
agrees to indemnify each Lender and to hold each Lender harmless from any loss,
cost or expense incurred by such Lender which is in the nature of funding
breakage costs or costs of liquidation or redeployment of deposits or other
funds and any other related expense (but excluding loss of margin or other loss
of anticipated profit), which such Lender may sustain or incur as a consequence
of (a) default by the Borrower in making any Borrowing of Eurocurrency
Loans after the Borrower has given a Notice of Borrowing requesting the same in
accordance with the provisions of this Agreement (including as a result of any
failure to fulfill, on or before the date specified in such Notice of
Borrowing, the applicable conditions set forth in Article IV), (b) default
by the Borrower in making any prepayment of any Eurocurrency Loan when due
after the Borrower has given notice thereof in accordance with this Agreement, (c) the
making by the Borrower of a prepayment of any Eurocurrency Loan on a day which
is not the last day of an Interest Period with respect thereto, (d) default
by the Borrower in payment when due of the principal of or interest on any
Eurocurrency Loan, (e) the Conversion or Continuation of any Eurocurrency
Loan on a day other than on the last day of an Interest Period with respect
thereto, and (f) any assignment such Lender is required to make pursuant
to Section 3.13(b) if such Lender holds Eurocurrency Loans at the
time of such assignment.  A certificate
of any Lender setting forth any 


 


40

















 


amount or amounts and a reasonable basis for
the determination thereof that such Lender is entitled to receive pursuant to
this Section and delivered to the Borrower shall be conclusive absent
manifest error.  The Borrower shall pay
to such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.


 


SECTION 3.13.  Mitigation Obligations; Replacement of
Lenders.


 


(a)  Designation
of a Different Lending Office.  If
any Lender requests compensation under Section 3.09, or requires the
Borrower to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.11, 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, if, in the sole and absolute
judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 3.09 or 3.11, as
the case may be, in the future and (ii) would not subject such Lender to
any unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender.


 


(b)  Replacement of Lenders.  If any Lender requests compensation under Section 3.09,
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 3.11,
or if any Lender defaults in its obligation to fund Loans hereunder, or if any
Lender has failed to consent to a proposed amendment, waiver, discharge or
termination that, pursuant to the terms of Section 9.01, requires the
consent of all of the Lenders or all of the Lenders affected (and such Lender
is an affected Lender) and with respect to which the Majority Lenders shall
have granted their consent, 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 9.06),
all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an Eligible Assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:


 


(i)  no Default or Event of Default
has occurred and is continuing on and as of the date of such notice and the
date of such assignment;


 


(ii)  such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts under Section 3.12) from
the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (in the case of all other amounts);


 


(iii)  in the case of any such
assignment resulting from a claim for compensation under Section 3.09 or
payments required to be made pursuant to Section 3.11, such assignment
will result in a reduction in such compensation or payments thereafter; and


 


(iv)  such assignment does not
conflict with applicable law.


 


41

















 


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.  A Lender
so replaced shall not be required to pay the processing and recordation fee
referred to in Section 9.05(b).


 


ARTICLE IV



CONDITIONS PRECEDENT


 


SECTION 4.01.  Closing Conditions.  The obligation of each Lender to make a Loan
on the occasion of the initial Borrowing and of the Issuing Lender to issue the
initial Letter of Credit (whichever shall first occur) shall be subject to the
conditions precedent that the Administrative Agent has received on or prior to
June 11, 2007 the following, each (unless otherwise specified below) dated the
Closing Date, and each in form and substance reasonably satisfactory to the
Administrative Agent:


 


(a)  This Agreement, duly executed and
delivered by the Borrower and each of the other parties hereto;


 


(b)  The Guarantee and Security
Agreement, duly executed and delivered by the Borrower and each Guarantor that
is a signatory thereto as of the Closing Date, together with evidence of the
perfection and first priority of the Liens created thereby, provided
that the Administrative Agent may determine that it is not necessary to perfect
a security interest in any of the Collateral that is not part of the Borrowing
Base if it determines that the cost or difficulty of doing so is material in
relation to the benefit, including evidence of the filing of a UCC-1 financing
statement in the District of Columbia; and provided, further,
that (subject and without prejudice to anything in this Agreement relating to
the Borrowing Base) such evidence with respect to Collateral located outside
the United States may be provided to the Administrative Agent within 30 days of
the Closing Date or within such other period of time as the Administrative
Agent may agree, and the Borrower agrees to use commercially reasonable efforts
to provide the same as promptly as practicable;


 


(c)  Certified copies of the Borrower
Partnership Agreement, of the constitutive documents of Borrower General
Partner and the Managing Investment Partner, and of the constitutive documents
of each such Guarantor, and of documents evidencing the taking of all necessary
action authorizing and approving the making and performance by the Borrower and
each such Guarantor of the Loan Documents and the transactions contemplated
thereby;


 


(d)  A certificate of the Managing
Investment Partner certifying the names and true signatures of the officers
authorized to sign the Loan Documents and any other documents to be delivered
hereunder by the Borrower and each such Guarantor;


 


(e)  A certified copy of the Services
Agreement, as in effect on the Closing Date;


 


42

















 


(f)  Favorable opinions of special
Guernsey counsel to the Borrower, substantially in the form of Exhibit D-1,
of Simpson Thacher & Bartlett LLP, special New York counsel to the
Borrower, substantially in the form of Exhibit D-2, and of Milbank, Tweed,
Hadley & McCloy LLP, special New York counsel to the Administrative
Agent, substantially in the form of Exhibit D-3, and favorable opinions of
Luxembourg and Cayman Islands counsel as to each Guarantor organized under the
laws of such respective jurisdiction as to such matters relating to such
Guarantor and the Guarantee and Security Agreement as the Administrative Agent
may reasonably require;


 


(g)  A certificate of a Financial
Officer, dated the Closing Date, certifying that (i) the representations
and warranties contained in Section 5.01 and in the other Loan Documents
are true and correct in all material respects on and as of such date as though
made on and as of such date and (ii) no event has occurred and is
continuing on and as of such date which constitutes a Default or an Event of
Default; and


 


(h)  Evidence of the payment of all
fees and expenses required to be paid on or prior to the Closing Date in
connection with this Agreement.


 


The Administrative Agent will promptly notify the Lenders of the
occurrence of the Closing Date.


 


SECTION 4.02.  Conditions Precedent to Each Borrowing and
Issuance .  The obligation of each
Lender to make a Loan on the occasion of each Borrowing (including the initial
Borrowing) and of the Issuing Lender to issue each Letter of Credit
(including the initial Letter of Credit) shall be subject to the conditions
precedent that on the date of and after giving effect to such Borrowing or
issuance, the Aggregate Borrowing Availability, the Tranche A Availability and
the Tranche B Availability shall each be greater than or equal to zero, and the
following statements shall be true:


 


(a)  the representations and
warranties contained in Section 5.01 and in the other Loan Documents are
true and correct in all material respects on and as of the date of such Borrowing
or issuance as though made on and as of such date, except to the extent such
representation or warranty expressly relates to an earlier date, in which case
it is true and correct in all material respects on and as of such earlier date;


 


(b)  no event has occurred and is
continuing, or would result from such Borrowing or issuance or from the
application of the proceeds from such Borrowing, which constitutes a Default or
an Event of Default; and


 


(c)  the Borrower shall have
delivered to the Administrative Agent a duly completed Form or Forms FR
U-1 or supplement thereto to the extent required by and in accordance with Section 6.01(j).


 


43














 


ARTICLE V




REPRESENTATIONS AND WARRANTIES


 


SECTION 5.01.  Representations
and Warranties.  The Borrower
represents and warrants to the Administrative Agent and the Lenders as follows:


 


(a)  Organization.  It is duly organized, validly existing and in
good standing as a limited partnership under the laws of Guernsey, and each
Guarantor is duly organized, validly existing and in good standing (to the
extent such concept is recognized under such law) under the laws of its
jurisdiction of organization.


 


(b)  Authorization.  The making and performance by it of this
Agreement and the other Loan Documents are within its powers as set forth in
the Borrower Partnership Agreement and have been duly authorized by all
necessary action thereunder, and the making and performance by each Guarantor
of the Guarantee and Security Agreement are within the powers of such Guarantor
and have been duly authorized by all necessary action.


 


(c)  Approvals;
No Conflicts; Etc.  The making and
performance by each Obligor of the Loan Documents to which it is a party (i) do
not require any consent or approval of, or registration or filing with, any
Governmental Authority (except for (A) such as have been obtained or made
and are in full force and effect in all material respects, (B) filings and
recordings in respect of Liens created pursuant to the Guarantee and Security
Agreement and (C) such licenses, approvals, authorizations or consents the
failure to obtain or make would not have an adverse effect on the validity or
enforceability of any of the material rights and remedies of the Lenders under
the Loan Documents), (ii) will not violate any applicable law, regulation
or order of any Governmental Authority the violation of which would have an
adverse effect on the validity or enforceability of any of the material rights
and remedies of the Lenders under the Loan Documents or any provision of the
Borrower Partnership Agreement or the Borrower GP Partnership Agreement, and (iii) will
not violate or constitute an event of default under any credit agreement, loan
agreement, note or indenture, or any other material agreement, binding upon it
or its Property; and no Default has occurred and is continuing.


 


(d)  Enforceability.  (i)  This Agreement has been duly
executed and delivered by the Managing Investment Partner as general partner on
behalf of the Borrower General Partner as general partner on behalf of the
Borrower and constitutes, and each Note and the Guarantee and Security
Agreement when duly executed and delivered by or on behalf of it and, in the
case of the Guarantee and Security Agreement, by each Guarantor for value will
constitute, the legal, valid and binding obligation of it and as applicable,
such Guarantor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.


 


(ii)  Each
Obligor is subject to civil and commercial law with respect to its obligations
under the Loan Documents, and the making and performance by it of the Loan
Documents constitute private and commercial acts rather than public or
governmental acts; and no Obligor is entitled to any immunity on the ground of
sovereignty or the like from the jurisdiction of any court or from any action,
suit, set-off or proceeding, or the service of process in connection therewith,
arising under or in connection with the Loan Documents.


 


44

















 


(iii)  This
Agreement is, and each Note and the Guarantee and Security Agreement when duly
executed and delivered by the Managing Investment Partner as general partner on
behalf of the Borrower General Partner as general partner on behalf of the
Borrower and, in the case of the Guarantee and Security Agreement, each
Guarantor, will be, in proper legal form under the laws of the jurisdiction of
organization of the Borrower or such Guarantor as the case may be, for the enforcement
thereof against the Borrower or such Guarantor under such law, and if this
Agreement were stated to be governed by such law, it would constitute a legal,
valid and binding obligation of the Borrower and such Guarantor under such law,
enforceable in accordance with its terms; and all corporate or similar
formalities required in each relevant jurisdiction for the validity and
enforceability of each of the Loan Documents have been accomplished, and no
Taxes are required to be paid and no notarization is required (except to the
extent already paid or notarized), for the validity and enforceability thereof.


 


(iv)  None of
the Obligors is carrying on unauthorized controlled investment business or
regulated fiduciary activities as defined in the Protection of Investors
(Bailiwick of Guernsey) Law, 1987, as amended, or the Regulation of
Fiduciaries, Administration Businesses and Company Directors, etc. (Bailiwick
of Guernsey) Law, 2000, as amended.


 


(e)  Financial
Condition; No Material Adverse Change. 
The Borrower has heretofore furnished to the Lenders its unaudited
Consolidated statements of assets and liabilities, Consolidated schedule of
investments, and Consolidated statements of operations, changes in net assets
and cash flows for the fiscal quarter ended March 31, 2007, certified by a
Financial Officer.  Such financial
statements present fairly, in all material respects, the consolidated financial
position and consolidated results of operations and cash flows of the Borrower
as of such date and for such period in accordance with GAAP, subject to
year-end audit adjustments and the absence of (or absence of a requirement to
have) footnotes.  As of the Closing Date,
the Borrower has no material contingent liabilities or material unusual forward
or long-term commitments not disclosed in the financial statements referred to
in this paragraph or in any footnotes thereto. 
Since March 31, 2007, there has been no material adverse change in
the Consolidated business, financial condition or operations of the Borrower.


 


(f)  No
Litigation.  There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority
pending against or, to the knowledge of the Borrower, threatened against or
affecting it or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, would reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect or (ii) that seek to prevent the
consummation, performance or enforcement of this Agreement or the transactions
contemplated hereby.


 


(g)  Margin
Regulations.  It is not engaged in
the business of extending credit for the purpose of buying or carrying Margin
Stock, and no proceeds of any Loans will be used for the purpose, whether
immediate, incidental or ultimate, of buying or carrying Margin Stock in
violation of Regulation T, U or X as in effect on the date or dates of such
Loan and such use of proceeds.


 


45

















 


(h)  Investment
Company Status.  The Borrower is not
required to register under and is not subject to regulation under the
Investment Company Act of 1940, as amended.


 


(i)  Disclosure.  No written report, financial statement,
certificate or other written information furnished by or on behalf of it to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (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,
taken as a whole, in the light of the circumstances under which they were made,
not misleading;  provided, that with
respect to projected financial information, it represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time and that actual results may differ materially from such
information.


 


(j)  Intellectual Property.  The Borrower owns, or is licensed or
otherwise permitted to use, all intellectual property required for the conduct
of its business as currently conducted, except to the extent the failure to own
or be licensed or otherwise permitted to use such intellectual property would
not reasonably be expected to have a Material Adverse Effect.


 


(k)  ERISA.  No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, would reasonably be
expected to result in a Material Adverse Effect.  The present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $75,000,000 the fair market value of the assets of
all such underfunded Plans.


 


(l)                                     Taxes.  There is no income, stamp or other tax, levy,
assessment, impost, deduction, charge or withholding of any kind imposed by
Guernsey (or any municipality or other political subdivision or taxing
authority thereof or therein that exercises de facto or de jure power to impose
such tax, levy, assessment, impost, deduction, charge or withholding) either (a) on
or by virtue of the execution or delivery of the Loan Documents or (b) on
any payment to be made by the Borrower pursuant to the Loan Documents, other
than any income tax imposed on any Person as a result of such Person being
organized under the laws of Guernsey or by virtue of its having a permanent
establishment in Guernsey to which income under this Agreement and the Notes is
attributable or its Applicable Lending Office being located in Guernsey.


 


(m)                               Subsidiaries.  Schedule VIII is a complete list of
Subsidiaries of the Borrower as of the date hereof.


 


46

















 


ARTICLE VI



COVENANTS


 


SECTION 6.01.  Affirmative
Covenants.  So long as any principal
of or interest on any Loan or any other amount payable under the Loan Documents
(other than contingent indemnity obligations not then due) shall remain unpaid
or any Lender shall have any Commitment or any Letter of Credit shall remain
outstanding hereunder (unless such Letter of Credit has been cash collaterized
or otherwise backstopped on terms reasonably satisfactory to the relevant
Issuing Lender), the Borrower covenants and agrees that, unless the Majority
Lenders shall otherwise consent in writing:


 


(a)  Reporting
Requirements.  It will furnish to the
Lenders:


 


(i)                                     within
90 days after the end of each of the first three fiscal quarters, its
unaudited Consolidated statement of assets and liabilities, Consolidated
schedule of investments and Consolidated statements of operations, changes in
net assets and cash flows as of the end of and for such quarter year, setting
forth in each case in comparative form (if applicable) the figures for the
corresponding period of the previous fiscal year, certified by a Financial
Officer to the effect that such financial statements present fairly in all
material respects the financial condition and results of operations of the
Borrower and its Subsidiaries on a Consolidated basis in accordance with GAAP
consistently applied, subject to the absence of (or absence of a requirement to
have) footnotes and to year-end adjustments;


 


(ii)                                  within
130 days after the end of each fiscal year, its audited Consolidated statement
of assets and liabilities, Consolidated schedule of investments and
Consolidated statements of operations, changes in net assets and cash flows as
of the end of and for such fiscal year, with the opinion thereon of Deloitte &
Touche LLP or such other independent certified public accountants of recognized
standing selected by the Borrower;


 


(iii)                               concurrently
with any delivery of financial statements under clauses (i) and (ii) above,
a certificate of a Financial Officer (x) certifying that no Default has
occurred or, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto and (y) setting
forth calculations demonstrating in reasonable detail compliance with Section 6.03;


 


(iv)                              on
or before the last Business Day of each month, a Borrowing Base Certificate as
of the last day of the immediately preceding month, provided, that the Borrower
may at any other time, in its discretion, provide to the Administrative Agent
additional Borrowing Base Certificates (which shall be deemed to have been
delivered under this Section 6.01(a)(iv) for purposes of the
definition of “Borrowing Base”);


 


(v)                                 promptly
upon determining at any time that the Total Credit Exposure for either Tranche
exceeds the Borrowing Base for such Tranche, notice thereof with reasonable
detail as to the amount of the excess and as to the steps being taken by the
Borrower to eliminate the excess (which may include reallocation thereof to the
other 


 


47

















 


Tranche to the
extent there is Availability thereunder) in compliance with Section 3.06(b)(i);
and


 


(vi)                              promptly
upon request by the Administrative Agent on behalf of the Majority Lenders,
such other information regarding the business, operations and financial
condition of any Obligor as such Lender may reasonably request (it being
understood that the Administrative Agent shall use reasonable efforts to
coordinate any such requests).


 


(b)  Existence;
Conduct of Business.  It will do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect (i) its legal existence, (ii) its status as (A) a
partnership in Guernsey and as (B) a partnership for U.S. federal income
tax purposes, and (iii) except to the extent that failure to do so would
not reasonably be expected to have a Material Adverse Effect, the rights, licenses,
permits, privileges and franchises material to the conduct of its business;
provided that the foregoing shall not prohibit any transaction expressly
permitted under Section 6.02(c).


 


(c)  Compliance
with Laws.  It will, and will cause
each of the Guarantors to, (i) comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its Property
including, but not limited to, the Partnership (Guernsey) Law 1995, as amended,
the Limited Partnerships (Guernsey) Law, 1995, as amended, and provisions of
applicable tax laws, except where the failure to do so, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect and (ii) take all steps necessary to cause the Loans and other
extensions of credit hereunder to be in compliance with Regulation U.  Without limiting the foregoing, the Borrower
will not withdraw or substitute any of the Collateral except in compliance with
the provisions of said Regulation.


 


(d)  KKR.  It will ensure that KKR or an Affiliate
thereof continues to provide investment management services to the Borrower
substantially similar to those provided for in the Services Agreement as in
effect on the Closing Date.


 


(e)  Investment
Strategies.  It will, and will cause
each of the Guarantors to, comply in all material respects with the Investment
Strategies.


 


(f)  Maintenance
of Properties.  It will, and will
cause each of the Guarantors to, keep and maintain all Property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, except to the extent failure to do so would not reasonably be
expected to have a Material Adverse Effect.


 


(g)  Books
and Records; Visitation and Inspection Rights.  It will, and will cause each of the
Guarantors to, keep proper books of record and account in accordance with GAAP,
and permit representatives designated by the Administrative Agent, upon
reasonable prior notice, to visit and inspect its Properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested, but in each case subject
to and in accordance with all applicable laws of any Governmental Authority and
such confidentiality measures relating thereto as the Borrower may reasonably
require.


 


48

















 


(h)  Notices of Material Events.  It will furnish to the Administrative Agent
and each Lender prompt written notice of the following:


 


(i)  the
occurrence of any Default or Event of Default;


 


(ii)  the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting it as to which there
is a reasonable possibility of an adverse determination and that, if adversely
determined, would reasonably be expected to result in a Material Adverse
Effect;


 


(iii)  the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, would reasonably be expected to result in liability
in an aggregate amount exceeding $75,000,000; and


 


(iv)  any
other event that has had, or would reasonably be expected to have, a Material
Adverse Effect.


 


Each notice delivered
under this subsection shall be accompanied by a statement of a Financial
Officer setting forth the details of the event or development requiring such
notice and any action taken or proposed to be taken with respect thereto.


 


(i)  Further
Assurances.  It will, and will cause
each of the Guarantors to, from time to time give, execute, deliver, file
and/or record any financing statement, notice, instrument, document, agreement
or other paper that is necessary to cause the Liens created by the Guarantee
and Security Agreement to be valid first priority perfected Liens on the
Property purported to be covered thereby (including after-acquired Property),
subject to no equal or prior Lien except as otherwise permitted by the Loan
Documents, and promptly from time to time obtain and maintain in full force and
effect, and cause each of the Guarantors to obtain and maintain in full force
and effect, all licenses, consents, authorizations and approvals of, and make
all filings and registrations with, any Governmental Authority necessary under
the laws of Guernsey or the jurisdiction of organization of such Guarantor (or
any other jurisdiction in which part of the Collateral owned by it or by any
Guarantor may be situated) for the making and performance by it of the Loan
Documents to which it is a party.


 


(j)  Form FR
U-1.  At the time of each Borrowing
and each substitution or withdrawal of Collateral, the Borrower will furnish to
the Administrative Agent a duly completed Form or Forms FR U-1, or an
appropriate supplement to any such form previously furnished, in form and
content satisfactory to the Administrative Agent demonstrating compliance with
the requirements of Regulation U; provided, that this provision shall
apply only during such time as the Collateral includes Margin Stock.


 


(k)  Equity
Interests in Investment Funds. 
Promptly after the inclusion in the Borrowing Base of any Equity
Interest in any Investment Fund which is an Eligible Portfolio Interest solely
by application of clause (iii) of the Definition of “Eligible Portfolio
Investment”, and prior to any sale or other disposition by an Obligor of any
such Equity Interest, the Borrower will cause irrevocable instructions to be
given to such Investment Fund or, as the case may be, to the Person to whom
such Equity Interest is to be disposed of, to make all payments in respect of 


 


49

















 


Investment Fund Payment Rights relating to such Investment Fund
directly to the relevant Investment Fund Payment Account.


 


SECTION 6.02.  Negative
Covenants.  So long as any principal
of or interest on any Loan or any other amount payable under the Loan Documents
(other than contingent indemnity obligations not then due) shall remain unpaid
or any Lender shall have any Commitment or any Letter of Credit shall remain
outstanding hereunder (unless such Letter of Credit has been cash collaterized
or otherwise backstopped on terms reasonably satisfactory to the relevant
Issuing Lender), the Borrower covenants and agrees that, unless the Majority
Lenders shall otherwise consent in writing:


 


(a)  Indebtedness.  It will not, nor will it permit any of the
Guarantors to, create, incur, assume or suffer to exist any Indebtedness for
Borrowed Money other than (i) unsecured Indebtedness and (ii) any
Excluded Investment Financing, and (iii) Indebtedness of a Person that
becomes a Guarantor after the date hereof existing at the time it became a
Guarantor (and not incurred in contemplation thereof); and it will not, nor
will it permit any of the Guarantors to, Guarantee any Indebtedness for
Borrowed Money other than in respect of unsecured Indebtedness and any Excluded
Investment Financing.


 


(b)  Liens.  It will not, nor will permit any Guarantor
to, create, incur, assume or permit to exist any Lien on any Property now owned
or hereafter acquired by it, except Liens under the Guarantee and Security
Agreement and other Liens in favor of the Administrative Agent as contemplated
hereby and except:


 


(i)  Permitted
Encumbrances;


 


(ii)  Liens (other
than on the Collateral) securing Third-Party Hedge Obligations;


 


(iii)  Liens (A) on
Excluded Investments, (B) on Margin Stock (not constituting part of the
Collateral) and (C) (other than on the Collateral) securing Excluded
Investment Financings; or


 


(iv)  any
Lien on any Property of the Borrower or any of Guarantor existing on the date
hereof and set forth in Schedule II, provided, that (x) such
Lien shall not apply to any other Property of the Borrower or such Guarantor
(or existing on Property of a Person that becomes a Guarantor after the date
hereof and not created in contemplation thereof) and (y) such Lien shall
secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;


 


provided that
notwithstanding anything in clauses (ii) through (iv) above no
Obligor shall create, incur, assume or suffer to exist any Lien on any
Portfolio Investment included in the Borrowing Base solely by reason of clause (iii) in
the definition of “Eligible Portfolio Investment”.


 


(c)  Mergers,
Consolidations, Sales of Assets, Etc. 
It will not merge into or consolidate with any other Person, or permit
any other Person to merge into or consolidate with it, or sell, transfer, lease
or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its Property (in each case,
whether now owned or hereafter 


 


50

















 


acquired), or liquidate
or dissolve; provided, that, if at the time thereof and immediately
after giving effect thereto no Default or Event of Default shall have occurred
and be continuing, any Person may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation; provided, further, that
this clause (c) shall not be deemed to restrict the Borrower from
disposing of Margin Stock that is not part of the Collateral.


 


(d)  Restricted
Payments.  It will not, and will not
permit any Guarantor to, declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except Restricted Payments:


 


(i)  the
proceeds of which will be used to pay (or to pay distributions to allow any
direct or indirect partner of the Borrower to pay) the tax liability of any KPE
Party or its partners, which for the avoidance of doubt includes such payments
to the unitholders of KPE (which payments may be made on the basis of a common
assumption as to the tax residency of each KPE unitholder); and


 


(ii)  the
proceeds of which shall be used to allow any KPE Party to pay its operating
expenses incurred in the ordinary course of business and other corporate,
partnership or other entity overhead costs and expenses, including
administrative, legal, accounting and similar expenses provided by third
parties, indemnification claims made by directors or officers of any KPE Party
attributable to the ownership or operations of any KPE Party, indemnification
claims made by indemnified persons under the organizational documents of any
KPE Party or under the Services Agreement, any litigation costs, any offering
costs, management fees and expenses, and carried interest payments and
incentive distributions payable under the Borrower Partnership Agreement.


 


Notwithstanding anything in this Agreement to the contrary, the
Borrower shall be permitted, so long as no Default or Event of Default shall
have occurred and be continuing at the time of declaration or payment thereof
and immediately thereafter, to make Restricted Payments on any date when (i)
the Total Credit Exposure for either Tranche shall not exceed the Borrowing
Base for either Tranche and (ii) the Borrower shall be in pro  forma
compliance with Section 6.03, in each case, after giving effect to such
Restricted Payment and the use of proceeds thereof.


 


(e)  Line
of Business.  It will not, nor will
it permit its Subsidiaries to, materially change their lines of business from
the business of making investments with capital provided by KPE or any other
partner of the Borrower.


 


SECTION 6.03.  Financial Covenant.  So long as any principal of or interest on
any Loan or any other amount payable under the Loan Documents (other than
contingent indemnity obligations not then due) shall remain unpaid or any
Lender shall have any Commitment or any Letter of Credit shall remain
outstanding hereunder (unless such Letter of Credit has been cash collaterized
or otherwise backstopped on terms reasonably satisfactory to the Borrower, the
relevant Issuing Lender and the Administrative Agent), the Borrower covenants
and agrees that, unless the Majority Lenders shall otherwise consent in
writing, the Borrower will not permit the Senior Secured Debt to Total Assets
Ratio at any time to exceed 0.50 to 1.00.


 


51














 


ARTICLE VII



EVENTS OF DEFAULT


 


SECTION 7.01.  Events of Default.  If any of the following events (“Events of
Default”) shall occur and be continuing:


 


(a)  the
Borrower shall fail to pay when due any principal of any Loan;


 


(b)  the
Borrower shall fail for five Business Days or more to pay any interest or any
fee or any other amount (other than principal) payable by the Borrower
under any Loan Document when and as the same shall become due and payable;


 


(c)  any
representation or warranty made or deemed made by an Obligor in this Agreement
or any other Loan Document, or in any report, certificate or other document
furnished pursuant to this Agreement, shall prove to have been incorrect in any
material respect when made or deemed made;


 


(d)  the
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 6.01(b)(i) or (ii)(A), 6.02(a), (b) or (c) or
6.03;


 


(e)  any
Obligor shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or
(d) of this Section) or in any other Loan Document, and such failure shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower;


 


(f)  the
Borrower or any Guarantor shall fail to make any payment of principal of
or interest on any Material Indebtedness, when and as the same shall become due
and payable; or any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity;


 


(g)  an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, winding up, reorganization or other relief
in respect of any KPE Party or its debts, or of a substantial part of its
Property, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official (including Her Majesty’s Sheriff in Guernsey) for any KPE
Party or for a substantial part of its Property, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;


 


(h)  any
KPE Party shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, winding up, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (g) of this Section, (iii) apply for or
consent to the 


 


52

















 


appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
(including Her Majesty’s Sheriff in Guernsey) for any KPE Party or for a
substantial part of its Property, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;


 


(i)  any
KPE Party shall become unable, admit in writing its inability or fail generally
to pay its debts as they become due;


 


(j)  one
or more judgments for the payment of money in an aggregate amount in excess of
$75,000,000 shall be rendered against the Borrower or any Guarantor and the
same shall remain undischarged for a period of 60 consecutive days during
which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any Property of the
Borrower or any Guarantor to enforce any such judgment;


 


(k)  an
ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, would reasonably be expected to have a Material Adverse
Effect;


 


(l)  the Guarantee and Security
Agreement (or any security interest therein) shall cease to be valid and
binding on, or enforceable against, the Borrower and any Guarantor which is a
Significant Subsidiary, or the Borrower or any such Guarantor shall so assert
in writing; or


 


(m)  neither KKR nor an Affiliate thereof is
providing investment management services to the Borrower substantially similar
to those contained in the Services Agreement as in effect on the Closing Date;


 


then the Administrative
Agent shall upon the request of the Majority Lenders, by notice to the
Borrower, take any or all of the following actions, at the same or different
times:  (i) terminate the Commitments and the obligation of the Swing
Line Lender to make Swing Line Loans, and thereupon they shall terminate
immediately, (ii) terminate any obligation of the Issuing Lender to issue
Letters of Credit hereunder, and thereupon such obligations shall terminate, (iii) declare
the Loans and the Swing Line Loans and all other amounts payable by the
Obligors under the Loan Documents to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued and other
amounts payable by the Obligors under the Loan Documents, shall become due and
payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower, and/or (iv) require
the Borrower to provide cash collateral for the outstanding L/C Reimbursement
Obligations in an aggregate amount equal to the then aggregate L/C Exposure and
thereupon the Borrower shall forthwith provide such cash collateral on terms
and subject to documentation reasonably satisfactory to the Administrative
Agent; and in case of any event with respect to the Borrower described in clause (g) or (h) of
this Section, the Commitments and such obligations of the Issuing Lender shall
automatically terminate and the principal of the Loans and Swing Line Loans
then outstanding, together with accrued interest thereon and all fees and other
obligations of the Obligors accrued under the Loan Documents, shall
automatically become due and payable, and the Borrower shall automatically be
required to 


 


53

















 


provide such cash
collateral, all without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.  Nothing herein shall terminate or otherwise
modify the obligations of the Lenders under Section 2.02(d) or
2.03(c).


 


ARTICLE VIII



THE ADMINISTRATIVE AGENT


 


SECTION 8.01.  Appointment
and Authority.  Each of the Lenders
hereby irrevocably appoints Citibank, N.A. to act on its behalf as the
Administrative Agent under and in connection with the 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 and the
Lenders and the Borrower shall have no rights as a third party beneficiary of
any of such provisions.


 


SECTION 8.02.  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” 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
any Obligor or any Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.


 


SECTION 8.03.  Exculpatory
Provisions.


 


(a)  The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. 
Without limiting the generality of the foregoing, the Administrative
Agent:


 


(i)  shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;


 


(ii)  shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Majority Lenders (or such other number
or percentage of the Lenders as shall be expressly provided for in the Loan
Documents), provided that the Administrative Agent shall not be required
to take any 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


 


(iii)  shall
not, except as expressly set forth in the Loan Documents, have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to


 


54

















 


any Obligor 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.


 


(b)  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 Majority 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 Section 8.01) 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 or a Lender.


 


(c)  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, (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 any 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.


 


SECTION 8.04.  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
issuance of a Letter of Credit that by its terms must be fulfilled to the
satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall
have received notice to the contrary from such Lender prior to the making of such
Loan or such issuance.  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.


 


SECTION 8.05.  Delegation
of Duties.  The Administrative Agent
may perform any and all of its duties and exercise its rights and powers under
any 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.


 


SECTION 8.06.  Resignation of Administrative Agent.  The Administrative Agent may at any time give
notice of its resignation to the Lenders and the Borrower.  Upon


 


55

















 


receipt of any such notice of resignation, the Majority Lenders shall
have the right, in consultation with the Borrower, to appoint a successor,
which shall be a nationally recognized bank with an office in New York, New
York or an Affiliate of any such bank with an office in New York, New
York.  If no such successor shall have
been so appointed by the Majority Lenders 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, 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 (i) the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents and (ii) 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 directly, until such time as the
Majority Lenders appoint a successor Administrative Agent as provided for above
in this subsection; and provided, further, that resignation by the
Administrative Agent shall not be effective until the Collateral has been
transferred to a successor.  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 under the Loan Documents (if not already discharged therefrom
as provided above in this subsection). 
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, the provisions of
this Article and Section 9.04 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.


 


SECTION 8.07.  Non-Reliance on Administrative Agent and
Other Lenders.  Each Lender
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 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 any Loan
Document or any related agreement or any document furnished hereunder or
thereunder.


 


SECTION 8.08. 
No Other Duties; Etc. 
Anything herein to the contrary notwithstanding, the Lead Arrangers
listed on the cover page hereof shall not, in such capacities, have any
powers, duties or responsibilities under any of the Loan Documents.


 


56

















 


ARTICLE IX



MISCELLANEOUS


 


SECTION 9.01.  Amendments, Etc.


 


(a)                                  No
amendment or waiver of any provision of this Agreement or the Notes, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Borrower and
the Majority Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given;  provided, that no amendment, waiver or
consent shall, unless in writing and signed by each Lender adversely affected
thereby, do any of the following:  (a) subject
such Lender to any additional obligations including, without limitation, any
extension of the expiry date of the Commitment of such Lender, (b) reduce
the principal of, or rate of interest on, any Loan or any fees or other amounts
payable hereunder, (c) postpone any date for payment of principal of, or
interest on, any Loan or any fees or other amounts payable hereunder when due
(other than fees or other amounts payable for the sole account of an Issuing
Lender), or (d) modify any of the provisions of the Loan Documents
relating to pro  rata payments; and provided, further, that
no amendment, waiver or consent shall, unless in writing and signed by all of
the Lenders, change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action hereunder, (x) amend
Section 3.07(a) or (b), or this Section 9.01, (y) change
the advance rates under the Borrowing Base for either Tranche or the Portfolio
Limitations with the effect of increasing the availability under the Borrowing
Base for either Tranche, or (z) release all or substantially all of the
Collateral; and provided, further, that no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent and the Issuing
Lenders in addition to the Lenders required above to take such action, affect
the rights or duties of the Administrative Agent or, as the case may be, the
Issuing Lenders under any Loan Document.


 


(b)                                 This
Agreement, the Notes, the Guarantee and Security Agreement, the Fee Letter and
the other agreements provided for herein constitute the entire agreement of the
parties hereto and thereto with respect to the subject matter hereof and
thereof.


 


SECTION 9.02. 
Notices, Etc.


 


(a)  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except
as provided in subsections (b) and (c) 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:


 


(i)  if
to the Borrower or any Guarantor:


 


	
  KKR PEI Investments, L.P.

  
	
  P.O. Box 255

  
	
  Trafalgar Court, Les Banques

  
	
  St. Peter Port, Guernsey GY1 3QL

  
	
  Channel Islands

  
	
   

  
	
  Attention: William J. Janetschek

  
	
  Telephone No.: +44.1481.745.001

  
	
  Telecopier No.: +44.1481.745.074

  



 


57

















 


With a copy to:


 


	
  KKR KPE LLC

  
	
  9 West 57th Street

  
	
  Suite 1640

  
	
  New York, New York 10019

  
	
   

  
	
  Attention: Kendra L. Decious

  
	
  Telephone No.: 212-659-2050

  
	
  Telecopier No.: 212-659-2040

  



 


(ii)  if to the Administrative Agent:


 


	
  Citibank, N.A.

  
	
  2 Penns Way, Suite 200

  
	
  New Castle, Delaware 19720

  
	
   

  
	
  Attention:
  Valerie Burrows

  
	
  Telephone No.:
  302-894-6065

  
	
  Telecopier No.:
  212-994-0961; and

  



 


(iii)   if to the Issuing Lender:


 


	
  Wachovia Bank, N.A.

  
	
  301 S. College Street, NC 5562

  
	
  Charlotte, N.C. 28288

  
	
  Attention: Karen
  Hanke

  
	
  Telephone No.:
  704-374-3061

  
	
  Telecopier No.:
  704-383-6647

  



 


(iv)  if to a Lender, to it at its address (or
telecopier number) set forth in its Administrative Questionnaire;


 


provided, that any party may change its address or
telecopier number for notices and other communications hereunder by notice to
the other parties.  Except as
provided in clause (d) below, 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 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), except that notices and communications to the Administrative
Agent pursuant to Article II or Article VII shall not be effective
until received by the Administrative Agent.  Notices delivered through electronic communications
to the extent provided in clauses (b) and (c) below, shall be
effective as provided in said clauses (b) and (c).


 


(b)  The Borrower agrees that it will
provide to the Administrative Agent all information, documents and other
materials that it is obligated to furnish to the Administrative Agent pursuant
to the Loan Documents, including all notices, requests, financial statements,


 


58

















 


financial and other reports, certificates and other information materials,
but excluding any such communication that (i) relates to the payment of
any principal or other amount due under this Agreement prior to the scheduled
date therefor, (ii) provides notice of any Default or Event of Default
under this Agreement or (iii) is required to be delivered to satisfy any
condition precedent to the occurrence of the Closing Date and/or any Borrowing
(all such non-excluded communications being referred to herein collectively as “Communications”),
by transmitting the Communications in an electronic/soft medium in a format
acceptable to the Administrative Agent to oploanswebadmin@citigroup.com.  In addition, the Borrower agrees to continue
to provide the Communications to the Administrative Agent in the manner
specified in the Loan Documents but only to the extent requested by the
Administrative Agent.


 


(c)  The Borrower further agrees that the
Administrative Agent may make the Communications available to the Lenders by
posting the Communications on Intralinks or a substantially similar electronic
transmission system (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 COMMUNICATIONS, OR THE ADEQUACY
OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS
IN THE COMMUNICATIONS.  NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, 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
THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM.  IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR
ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, THE “AGENT PARTIES”) HAVE
ANY LIABILITY TO ANY OBLIGOR, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR
DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN
TORT, CONTRACT OR OTHERWISE) ARISING OUT OF SUCH OBLIGOR’S OR THE
ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET,
EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.


 


(d)  The Administrative Agent agrees that
the receipt of the Communications by the Administrative Agent at its e-mail
address set forth above shall constitute effective delivery of the
Communications to the Administrative Agent for purposes of the Loan
Documents.  Each Lender agrees that
notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective
delivery of the Communications to such Lender for purposes of the Loan
Documents.  Each Lender agrees (i) to
provide to the Administrative Agent in writing (including by electronic
communication), promptly after the date of this Agreement, one or more e-mail
addresses to which the foregoing notice may be sent by electronic transmission
and (ii) that the foregoing notice may be sent to such e-mail address or
addresses.


 


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(e)  Nothing herein shall prejudice the
right of the Administrative Agent or any Lender to give any notice or other
communication pursuant to any Loan Document in any other manner specified in
such Loan Document.


 


SECTION 9.03. 
No Waiver; Remedies; Setoff.


 


(a)  No
failure on the part of any Lender or the Administrative Agent to exercise, and
no delay in exercising, any right hereunder or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise
of any other right.  The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.


 


(b)  If an Event of Default shall have occurred
and be continuing, each Lender 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 to or for the credit
or the account of the Borrower against any and all of the obligations of such
now or hereafter existing under this Agreement or any other Loan Document to
such Lender irrespective of whether or not such Lender 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 different from the branch or office holding
such deposit or obligated on such indebtedness. 
The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) that such
Lender may have.  Each Lender 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.


 


SECTION 9.04.  Expenses; Indemnity; Damage Waiver.


 


(a)  Costs and
Expenses.  The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
Lead Arrangers (including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent), in connection with the syndication of
the facility contemplated hereby, 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) and (ii) all out-of-pocket expenses incurred by the
Administrative Agent (including the fees, charges and disbursements of any
counsel for the Administrative Agent) in connection with the enforcement or,
during the continuance of an Event of Default, protection of its rights in
connection with this Agreement and the other Loan Documents, including its rights
under this Section.


 


(b)  Indemnification
by the Borrower.  The Borrower shall
indemnify the Administrative Agent, the Lead Arrangers, each Lender 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 fees, charges and disbursements of one counsel for the Indemnitees in each
relevant jurisdiction or of more than one such counsel to the
extent any Indemnitee reasonably
determines that there is an actual conflict of interest requiring the employment of separate


 


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counsel), incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower 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 or the
consummation of the transactions contemplated hereby or thereby, (ii) any
Loan or Swing Line Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom, 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 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 gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower against
an Indemnitee for breach of such Indemnitee’s obligations hereunder or under
any other Loan Document, if the Borrower has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent
jurisdiction.


 


(c)  Reimbursement
by Lenders.  To the extent that the
Borrower for any reason fails to indefeasibly pay any amount required under
clause (a) or (b) of this Section to be paid by it to
the Administrative Agent or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent or such Related
Party, as the case may be, such Lender’s Commitment Percentage (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
in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent in connection with such capacity.


 


(d)  Waiver of
Consequential Damages, Etc.  To the
fullest extent permitted by applicable law, each party hereto agrees that it
will not assert, and hereby waives, any claim against any other party hereto,
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, any Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or
thereby, any Loan or Swing Line Loan or the use of the proceeds thereof or any
Letter of Credit.


 


(e)  Payments. 
All amounts due under this Section shall be payable not later than
10 Business Days after demand therefor.


 


SECTION 9.05.  Binding
Effect, Successors and Assigns.  This
Agreement shall become effective when it shall have been executed by the
Borrower and the Administrative Agent and when the Administrative Agent shall
have been notified by each Lender that such Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
permitted assigns, except that the Borrower shall not have the right to assign
its rights hereunder or any interest herein without the prior written consent
of the Lenders.


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SECTION 9.06. Assignments and Participations.


 


(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 Eligible Assignee in accordance with the
provisions of clause (b) of this Section, (ii) by way of
participation in accordance with the provisions of clause (d) of this
Section or (iii) by way of pledge or assignment of a security
interest in accordance with clause (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
clause (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent
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 Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing
to it);  provided, that


 


(i)   except in the case of an
assignment of the entire remaining amount of the assigning Lender’s Commitment
and the 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 (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Commitment is not then
in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment (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 or the Commitment assigned; and


 


(iii) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500 and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.


 


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


 


62

















 


shall
be a party to this Agreement and, to the extent of the interest assigned by
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 3.11, 3.12  and 9.04
with respect to facts and circumstances occurring prior to such Assignment Date.
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 clause (d) of this Section.


 


(c)  Register.
The Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at its address specified in Section 9.02 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 Commitments of,
and principal amounts of the Loans 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
may 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 Commitment and/or the Loans 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 and
the Lenders 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, modification or waiver described in the first proviso
of Section 9.01  that affects
such Participant. Subject to clause (e) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of 3.11  to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to clause (b) of this Section. To
the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 3.12 as though it were a Lender.


 


(e)  Limitations
upon Participant Rights. A Participant shall not be entitled to receive any
greater payment under Sections 3.09 and 3.11  than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant.


 


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(f)  Certain
Pledges. Any Lender, without the consent of the Borrower or the
Administrative Agent may at any time grant security interest in all or any
portion of its rights under this Agreement or any Note 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.


 


SECTION 9.07. 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. The Borrower irrevocably 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 of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to any Loan Document, or for
recognition or enforcement of any judgment, and the Borrower irrevocably 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 extent permitted by
applicable law, in such Federal court. The Borrower 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 any Loan Document shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to any Loan Document against the Borrower or its Properties
in the courts of any jurisdiction.


 


(c)  Waiver
of Venue. The Borrower irrevocably 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 any
Loan Document in any court referred to in clause (b) above. The
Borrower 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. The Borrower agrees that service of process
in any such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to KKR KPE LLC (the “Process Agent”) as agent for
the Borrower in New York, New York for service of process at its address set
forth in Section 9.02, or at such other address of which the
Administrative Agent shall have been notified in writing by the Borrower;  provided, that if the Process Agent
changes its location (outside the Borough of Manhattan) or ceases to act as the
Borrower’s agent for service of process, the Borrower will, by an instrument
reasonably satisfactory to the Administrative Agent, promptly appoint another
Person (subject to the approval of the Administrative Agent) in the
Borough of Manhattan, New York, New York to act as the Borrower’s agent for
service of process. Each other
party hereto irrevocably consents to service of process in the manner provided for
notices in Section 9.02. Nothing in this Agreement will affect the right
of any party hereto to serve process in any other manner permitted by
applicable law.


 


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(e)  Waiver of
Immunity. To the extent that the Borrower may be or become entitled to
claim for itself or its Property any immunity on the ground of sovereignty or
the like from suit, court jurisdiction, attachment prior to judgment,
attachment in aid of execution of a judgment or execution of a judgment, and to
the extent that in any such jurisdiction there may be attributed such an
immunity (whether or not claimed), the Borrower hereby irrevocably agrees not
to claim and hereby irrevocably waives such immunity with respect to its
obligations under this Agreement and the other Loan Documents.


 


SECTION 9.08. Severability. Any provision of
this Agreement held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.


 


SECTION 9.09. Counterparts; Integration;
Effectiveness; Execution.


 


(a)  Counterparts;
Integration; Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of 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. This Agreement shall become
effective when it 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 by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.


 


(b)  Electronic
Execution of Loan Documents or any Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Loan Documents or 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.


 


SECTION 9.10. Survival. The provisions of
Sections 3.09, 3.11 and 3.12 and Article VIII and Section 9.04 shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans and the
Commitments or the termination of this Agreement or any provision hereof.


 


SECTION 9.11.
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 ANY


 


65

















 


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, 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 THE LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.


 


SECTION 9.12. Confidentiality. Each of the
Administrative Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates’ respective partners,
directors, officers, employees, agents, advisors and other 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), (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 under any Loan
Document or any action or proceeding relating to any Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same 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 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 or any of their
respective Affiliates on a non-confidential basis from a source other than the
Borrower.


 


For
purposes of this Section, “Information” means all information received
from the Borrower or any of its Subsidiaries relating to the Borrower or any of
its Subsidiaries or any of their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
non-confidential basis prior to disclosure by the Borrower or any of its
Subsidiaries, provided, that, in the case of information received from
the Borrower or any of its Subsidiaries after the date hereof, such information
is clearly identified at the time of delivery as confidential, provided,
that all information received pursuant to Section 6.01(a)(iii) through
(vi) and 6.01(h) shall be treated as confidential. 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.


 


SECTION 9.13. No Fiduciary Relationship. The
Borrower acknowledges that neither any Lender nor the Administrative Agent has
any fiduciary relationship with, or fiduciary duty to, the Borrower arising out
of or in connection with any Loan Document, and the relationship between the
Administrative Agent and the Lenders, on the one hand, and the


 


66

















 


Borrower, on
the other, in connection herewith or therewith is solely that of debtor and
creditor. This Agreement does not create a joint venture among the parties.


 


SECTION 9.14. Headings. Article and Section
headings and the Table of Contents used herein are for convenience of reference
only, are not part of this Agreement and shall not affect the construction of,
or be taken into consideration in interpreting, this Agreement.


 


SECTION 9.15. USA PATRIOT Act. Each 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 to identify
the Borrower in accordance with the Act.


 


SECTION 9.16. Judgment Currency. This is an
international loan transaction in which the specification of Dollars or an
Alternate Currency, as the case may be (the “Specified Currency”), and
any payment in New York City or the country of the Specified Currency, as the
case may be (the “Specified Place”), is of the essence, and the
Specified Currency shall be the currency of account in all events relating to
Amounts denominated in such Specified Currency. The payment obligations of the
Borrower under this Agreement and the other Loan Documents shall not be
discharged by an amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid on
conversion to the Specified Currency and transfer to the Specified Place under
normal banking procedures does not yield the amount of the Specified Currency
at the Specified Place due hereunder. If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in the Specified
Currency into another currency (the “Second Currency”), the rate of
exchange which shall be applied shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding that on
which such judgment is rendered. The obligation of the Borrower in respect of
any such sum due from it to the Administrative Agent or any Lender hereunder
shall, notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent or such Lender, as the case may be, of any
sum adjudged to be due hereunder or under the Notes in the Second Currency to
the Administrative Agent or such Lender, as the case may be, may in accordance
with normal banking procedures purchase and transfer to the Specified Place the
Specified Currency with the amount of the Second Currency so adjudged to be
due; and the Borrower hereby, as a separate obligation and notwithstanding any
such judgment, agrees to indemnify the Administrative Agent or such Lender, as
the case may be, against, and to pay the Administrative Agent or such Lender,
as the case may be, on demand in the Specified Currency, any difference between
the sum originally due to the Administrative Agent or such Lender, as the case
may be, in the Specified Currency and the amount of the Specified Currency so
purchased and transferred.


 


SECTION 9.17  European
Monetary Union. (a)  Definitions.
In this Section 9.17 and in each other provision of this Agreement to which
reference is made in this Section 9.17 (whether expressly or impliedly), the
following terms have the following respective meanings:


 


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“EMU” shall mean
economic and monetary union as contemplated in the Treaty on European Union.


 


“EMU Legislation”
shall mean legislative measures of the European Council for the introduction
of, changeover to or operation of a single or unified European currency, being
in part the implementation of the third stage of EMU.


 


“Euro” shall mean
the single currency of Participating Member States of the European Union, which
shall be a Currency under this Agreement.


 


“Euro Unit” shall
mean a currency unit of the Euro.


 


“National Currency
Unit” shall mean a unit of any Currency (other than a Euro Unit) of a Participating
Member State.


 


“Participating Member
State” shall mean each state so described in any EMU Legislation.


 


“Target Operating Day”
shall mean any day that is not (i) a Saturday or Sunday, (ii) Christmas
Day or New Year’s Day or (iii) any other day on which the Trans-European
Real-time Gross Settlement Express Transfer system (or any successor settlement
system) is not operating (as determined by the Administrative Agent).


 


“Treaty on European
Union” shall mean the Treaty of Rome of March 25, 1957, as amended by
the Single European Act 1986 and the Maastricht Treaty (which was signed at
Maastricht on February 7, 1992, and came into force on November 1,
1993), as amended from time to time.


 


(b)  Alternative
Currencies. If and to the extent that any EMU Legislation provides that an
amount denominated either in the Euro or in the National Currency Unit of a
Participating Member State and payable within the Participating Member State by
crediting an account of the creditor can be paid by the debtor either in the
Euro Unit or in that National Currency Unit, any party to this Agreement shall
be entitled to pay such amount either in the Euro Unit or in such National
Currency Unit.


 


(c)  Payments by
the Administrative Agent Generally. With respect to the payment of any
amount denominated in the Euro or in a National Currency Unit, the
Administrative Agent shall not be liable to the Borrower or any of the Lenders
in any way whatsoever for any delay, or the consequences of any delay, in the
crediting to any account of any amount required by this Agreement to be paid by
the Administrative Agent if the Administrative Agent shall have taken all
relevant steps to achieve, on the date required by this Agreement, the payment
of such amount in immediately available, freely transferable, cleared funds (in
the Euro Unit or, as the case may be, in a National Currency Unit) to the
account of the Borrower or any Lender, as the case may be, in the Principal
Financial Center in the Participating Member State which the Borrower or, as
the case may be, such Lender shall have specified for such purpose. In this
paragraph (c), “all relevant steps” shall mean all such steps as may be
prescribed from time to time by the regulations or operating procedures of such
clearing or


 


68

















 


settlement system as the
Administrative Agent may from time to time reasonably determine for the purpose
of clearing or settling payments of the Euro.


 


(d)  Determination
of Eurocurrency Rate. For the purposes of determining the date on which the
applicable rate for Eurocurrency Loans, as the case may be, is determined under
this Agreement for any Loan denominated in the Euro (or any National Currency
Unit) for any Interest Period therefor, references in this Agreement to London
Banking Days shall be deemed to be references to Target Operating Days. In
addition, if the Administrative Agent determines that there is no Eurocurrency
Rate displayed on the Screen Page for deposits denominated in the National
Currency Unit in which any Loans are denominated, the Eurocurrency Rate for
such Loans shall be based upon the rate displayed on the applicable Screen Page for
the offering of deposits denominated in Euro Units.


 


(e)  Rounding.
Without prejudice and in addition to any method of conversion or rounding
prescribed by the EMU Legislation, each reference in this Agreement to a
minimum amount (or a multiple thereof) in a National Currency Unit to be paid
to or by the Administrative Agent shall be replaced by a reference to such
reasonably comparable and convenient amount (or a multiple thereof) in the Euro
Unit as the Administrative Agent may from time to time specify.


 


(f)  Other
Consequential Changes. Without prejudice to the respective liabilities of
the Borrower to the Lenders and the Lenders to the Borrower under or pursuant
to this Agreement, except as expressly provided in this Section 9.17, 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
necessary or appropriate to reflect the introduction of or changeover to the
Euro in Participating Member States.


 


69

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers or representatives thereunto duly
authorized, as of the date first above written.


 


	
   

  	
  KKR
  PEI INVESTMENTS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  KKR
  PEI ASSOCIATES, L.P., its general partner

  
	
   

  	
  By:

  	
  KKR
  PEI GP Limited, its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITIBANK,
  N.A.,

  
	
   

  	
    as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LENDERS

  
	
   

  	
   

  
	
   

  	
  CITIBANK,
  N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GOLDMAN
  SACHS CREDIT PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MORGAN
  STANLEY BANK

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
				



 


70

















 


	
   

  	
  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

  
	
   

  	
   

  
	
   

  	
   

  	
   

  



 


71

















 


	
   

  	
  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

  
	
   

  	
   

  
	
   

  	
   

  	
   

  



 


72














 


SCHEDULE I


 


LENDERS AND COMMITMENTS


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Citibank, N.A.

  	
   

  	
  $

  	
  125,000,000

  	
   

  
	
  Goldman Sachs Credit
  Partners, L.P.

  	
   

  	
  $

  	
  125,000,000

  	
   

  
	
  Morgan
  Stanley Bank

  	
   

  	
  $

  	
  125,000,000

  	
   

  
	
  ABN
  Amro Bank N.V.

  	
   

  	
  $

  	
  55,000,000

  	
   

  
	
  Bank
  of America, N.A.

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  Bear
  Stearns Corporate Lending Inc.

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Credit
  Suisse, Cayman Islands Branch

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  Deutsche
  Bank AG, New York Branch

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  JPMorgan
  Chase Bank, N.A.

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  Lehman
  Commercial Paper Inc.

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  Merrill
  Lynch Bank USA

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  Royal
  Bank of Canada

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  The
  Bank of Nova Scotia

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Wachovia
  Bank, National Association

  	
   

  	
  $

  	
  50,000,000

  	
   

  



 

















 


SCHEDULE II


 


EXISTING LIENS


 


[See Section 6.02(b)(iv)]


 


Liens in favor
of  Deutsche Bank Luxembourg S.A., in its
capacity as custodian (the “Custodian”), under the Custodian Agreement,
dated April 28, 2006, between KKR PEI SICAR, S.à r.l. and the Custodian.


 

















 


SCHEDULE III


 


PORTFOLIO INVESTMENTS; SPECIFIED PERCENTAGES


 


Portfolio
investments in common equity that are owned directly by the Credit Parties (but
that are made “side-by-side” with KKR-sponsored funds or constitute
co-investments with KKR-sponsored funds) will be treated as
Co-Investments.  The following are the
advance rates applicable to Co-Investments and other investments.


 


TRANCHE A


 


	
  Portfolio
  Investment

  	
   

  	
  Quoted

  	
   

  	
  Unquoted

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cash, cash equivalents and U.S. treasuries of less
  than one month

  	
   

  	
  100%

  	
   

  	
  n.a.

  	
   

  
	
  U.S. treasuries of one month or more

  	
   

  	
  95%

  	
   

  	
  n.a.

  	
   

  
	
  Other Short-Term Securities

  	
   

  	
  92%

  	
   

  	
  n.a.

  	
   

  
	
  Investment grade bank loans

  	
   

  	
  92%

  	
   

  	
  n.a.

  	
   

  
	
  Investment grade bonds — cash pay

  	
   

  	
  90%

  	
   

  	
  n.a.

  	
   

  
	
  Performing 1st lien bank loans

  	
   

  	
  90%

  	
   

  	
  80%

  	
   

  
	
  Performing 2nd lien bank loans

  	
   

  	
  80%

  	
   

  	
  70%

  	
   

  
	
  Performing unsecured bank loans

  	
   

  	
  75%

  	
   

  	
  65%

  	
   

  
	
  Performing high yield bonds — cash pay

  	
   

  	
  70%

  	
   

  	
  60%

  	
   

  
	
  Performing mezzanine, preferred and convertible
  securities — cash pay

  	
   

  	
  65%

  	
   

  	
  55%

  	
   

  
	
  Performing high yield — non-cash pay

  	
   

  	
  60%

  	
   

  	
  50%

  	
   

  
	
  Performing mezzanine, preferred and convertible
  securities — non-cash pay

  	
   

  	
  55%

  	
   

  	
  45%

  	
   

  
	
  Nonperforming 1st lien bank loans

  	
   

  	
  65%

  	
   

  	
  55%

  	
   

  
	
  Nonperforming 2nd lien bank loans

  	
   

  	
  55%

  	
   

  	
  45%

  	
   

  
	
  Nonperforming unsecured bank loans

  	
   

  	
  50%

  	
   

  	
  40%

  	
   

  
	
  Nonperforming high yield bonds

  	
   

  	
  50%

  	
   

  	
  40%

  	
   

  
	
  Nonperforming mezzanine, preferred and convertible
  securities

  	
   

  	
  50%

  	
   

  	
  40%

  	
   

  
	
  Co-Investments and common equity (and zero cost or
  penny warrants) where debt is performing

  	
   

  	
  50%

  	
   

  	
  n.a.

  	
   

  



 


If
the Eligible Investments are denominated in a currency other than U.S. dollars
and are not micro-hedged for fluctuations in the currency in which the
investment is denominated versus the U.S. dollar, the above advance rate will
apply;  provided, however, that
availability under the Borrowing Base will be calculated as the product of (i) the
Fair Value of the investment (ii) the applicable advance rate and (iii) 95.0%.


 


“Quoted”
Portfolio Investments in Co-Investments and common equity may be held directly
or indirectly through one or more holding entities; provided that any such
intermediate holding entity has no assets or liabilities other than de minimis
assets or liabilities not affecting the value of such Portfolio Investment.


 

















 


TRANCHE B


 


	
  Investments

  	
   

  	
  Quoted

  	
   

  	
  Unquoted

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Co-investments and common equity (and zero cost or
  penny warrants) where debt is performing

  	
   

  	
  n.a.

  	
   

  	
  30%

  	
   

  
	
  Co-investments and common equity (and zero cost or
  penny warrants) where debt is non-performing

  	
   

  	
  25%

  	
   

  	
  0%

  	
   

  
	
  Equity interests in private equity funds

  	
   

  	
  50%

  	
   

  	
  40%

  	
   

  



 


If
the Eligible Investments are denominated in a currency other than U.S. dollars
and are not micro-hedged for fluctuations in the currency in which the
investment is denominated versus the U.S. dollar, the above advance rate will
apply;  provided, however, that
availability under the Borrowing Base will be calculated as the product of (i) the
Fair Value of the investment (ii) the applicable advance rate and (iii) 95.0%.


 


Investments in Diversified Capital Markets Funds*


 


	
  No lockup, fund leverage <1:1

  	
   

  	
  50%

  	
   

  
	
  Lockup, fund leverage <1:1

  	
   

  	
  40%

  	
   

  
	
  No lockup, fund leverage <3:1

  	
   

  	
  25%

  	
   

  
	
  Lockup, fund leverage <3:1

  	
   

  	
  20%

  	
   

  
	
  Fund leverage >3:1

  	
   

  	
  0%

  	
   

  



 






*                 For these purposes, (i) Diversified
Capital Markets Funds are funds investing largely in debt securities and public
equities, (ii) no lockup means the relevant investment can be liquidated
within 90 days, (iii) lockup means that the relevant investment cannot be
liquidated within 90 days and (iv) leverage means the ratio of debt to
equity of the relevant investment vehicle.


 


*                 “Quoted” Portfolio Investments in
Co-Investments and common equity may be held directly or indirectly through one
or more holding entities; provided that any such intermediate holding entity
has no assets or liabilities other than de minimis assets or liabilities not
affecting the value of such Portfolio Investment.


 

















 


SCHEDULE IV


 


PORTFOLIO
LIMITATIONS


 


Advance rate applicable
to that portion of a direct investment in any specific security (other than
Cash, Cash Equivalents or other government securities and Diversified Capital
Markets Funds) exceeding 12% of net assets (“NAV”) of the Borrower, as
disclosed in its most recent consolidated statement of assets and liabilities,
will be 0% of advance rate (as specified in Annex II) otherwise
applicable.


 


Advance rate
applicable to that portion of a direct investment in any specific industry
(determined, for example, by reference to NAICS Codes) exceeding 25% of NAV
will be 0%.


 


For purposes
hereof, concentration limitations for Portfolio Investments in private equity
funds shall be determined in reference to the underlying portfolio investments
of such funds and industry concentration limitations shall not apply.


 

















 


SCHEDULE V


 


VALUATION CRITERIA


 


Investments by the Obligors shall be valued as
follows:


 


·                                          Quoted Investments (other than funds noted below) — to
be valued monthly


 


·                                          Average bid prices of two approved dealers for public
and 144A securities


 


·                                          Administrative Agent-approved exchange closing price


 


·                                          Administrative Agent-approved pricing service
(including LPC for bank loans)


 


provided, that it is agreed that Bloomberg
Information Service is an Administrative Agent-approved quotation and pricing
service


 


·                                          Unquoted Investments (other than funds noted below) —
to be valued quarterly


 


·                                          Duff & Phelps (or any nationally recognized
valuation firm as may be approved by a majority of the independent directors of
KPE General Partner) shall assist the Board of Directors of the Managing
Investment Partner in determining the value or the methodology for determining
value of unquoted investments, in accordance with the Borrower’s existing
valuation procedures


 


·                                          Refreshed valuations for monthly compliance reports
are not necessary, i.e. no requirement for external valuation for unquoted
investments more often than quarterly; if an unquoted investment is acquired
during a fiscal quarter, such investment shall have a value equal to the
investment’s cost until the end of quarter valuation


 


·                                          Funds — net asset value


 


·                                          Valuation for Borrowing Base for each Tranche to be
based on existing valuation procedures that require external valuation firms to
confirm that the internal valuations are not unreasonable, provided that
if the Borrower fails to determine the value of any investment, the value of
such investment will be deemed to be zero.


 

















 


·                                          All valuations shall be on a settlement
date basis and shall be calculated in accordance with GAAP as in effect from
time to time.


 

















 


SCHEDULE VI


 


INVESTMENT STRATEGIES


 


[See Section 1.01]


 


The investment
strategy of the Borrower is to make investments identified by Kohlberg Kravis
Roberts & Co. L.P. and its Affiliates (collectively, “KKR”).  As of the date of the Agreement, these
investments consist of two categories of investments:  private equity investments and opportunistic
investments (it being understood that these categories may be revised from time
to time).


 


Private equity
investments include investments in limited partner interests in KKR-sponsored
private equity funds, co-investments in certain portfolio companies of such
private equity funds, and negotiated investments in equity and equity-linked
securities.


 


Opportunistic
investments are any investments other than private equity investments, which
include investments in publicly listed stock and corporate debt obligations.


 


Pursuant to a
services agreement, KKR is responsible for selecting, evaluating, structuring,
diligencing, negotiating, executing, monitoring and exiting the Borrower’s
investments.


 














 


SCHEDULE VII


 


MANDATORY COST RATE


 


Calculation of Mandatory
Cost Rate


 


1.             The MCR Cost is an addition to the interest rate to
compensate Lenders for the cost of compliance with (a) the requirements of
the Bank of England and/or the Financial Services Authority (or, in either
case, any other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.


 


2.             On the first day of each Interest Period for any Loan
denominated in an Alternate Currency (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional
Cost Rate”) for each Lender, in accordance with the paragraphs set out
below.  The MCR Cost will be calculated
by the Administrative Agent as a weighted average of the Lenders’ Additional
Cost Rates (weighted in proportion to the percentage participation of each
Lender in the relevant Loan) and will be expressed as a percentage rate per
annum.


 


3.             The Additional Cost Rate for any Lender lending from an
Applicable Lending Office in a Participating Member State (as defined in Section 9.17)
will be the percentage notified by that Lender to the Administrative
Agent.  This percentage will be certified
by that Lender in its notice to the Administrative Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender’s
participation in all Loans made from that Applicable Lending Office) of
complying with the minimum reserve requirements of the European Central Bank in
respect of loans made from that Applicable Lending Office.


 


4.             The Additional Cost Rate for any Lender lending from
an Applicable Lending Office in the United Kingdom will be calculated by the
Administrative Agent as follows:


 


(a)           in relation to a Loan made in Pounds Sterling:


 


	
  

  	
   

  	
  per cent. per annum

  



 


(b)           in relation to a Loan made in any Alternate Currency
other than Pounds Sterling:


 


	
  

  	
   

  	
  per cent. per annum.

  



 

















 


Where:


 


A             is the percentage of Eligible Liabilities (assuming
these to be in excess of any stated minimum) which such Lender is from time to
time required to maintain as an interest free cash ratio deposit with the Bank
of England to comply with cash ratio requirements.


 


B             is the percentage rate of interest (excluding the
Applicable Margin and the MCR Cost and, if applicable, any additional amount of
interest specified in Section 3.02(b)) payable for the relevant Interest
Period on the Loan.


 


C             is the percentage (if any) of Eligible Liabilities
which such Lender is required from time to time to maintain as interest bearing
Special Deposits with the Bank of England.


 


D             is the percentage rate per annum payable by the Bank
of England to the Administrative Agent on interest bearing Special Deposits.


 


E              is designed to compensate Lenders for amounts payable
under the Fees Rules and is calculated by the Administrative Agent as
being the average of the most recent rates of charge supplied by the Reference
Banks to the Administrative Agent pursuant to paragraph 7 below and expressed
in pounds per £1,000,000;


 


5.             For the purposes of this Schedule:


 


(a)             “Eligible Liabilities” has the meaning given to
it from time to time under or pursuant to the Bank of England Act 1998 or (as
may be appropriate) by the Bank of England.


 


(b)             “Fees Rules” means the rules on periodic
fees contained in the FSA Supervision Manual or such other law or regulation as
may be in force from time to time in respect of the payment of fees for the
acceptance of deposits.


 


(c)             “Fee Tariffs” means the fee tariffs specified
in the Fees Rules under the activity group A.1 Deposit acceptors (ignoring
any minimum fee or zero rated fee required pursuant to the Fees Rules but
taking into account any applicable discount rate).


 


(d)             “Special Deposits” has the meaning given to it
from time to time under or pursuant to the Bank of England Act 1998 or (as may
be appropriate) by the Bank of England.


 


(e)             “Tariff Base” has the meaning given to it in,
and will be calculated in accordance with, the Fees Rules.


 


6.             In application of the above formulae, A, B, C and D
will be included in the formulae as percentages (i.e. 5 per cent. will be
included in the formula as 5 and not as 0.05). 
A negative result obtained by subtracting D from B shall be taken as
zero.  The resulting figures shall be
rounded to four decimal places.


 

















 


7.             If requested by the Administrative Agent, each
Reference Bank shall, as soon as practicable after publication by the Financial
Services Authority, supply to the Administrative Agent the rate of charge
payable by that Reference Bank to the Financial Services Authority pursuant to
the Fees Rules in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by that Reference Bank as being
the average of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per £1,000,000 of the Tariff Base of that
Reference Bank.


 


8.             Each Lender shall supply any information required by
the Administrative Agent for the purpose of calculating its Additional Cost
Rate.  In particular, but without
limitation, each Lender shall supply the following information on or prior to
the date on which it becomes a Lender:


 


(a)             the jurisdiction of its Applicable
Lending Office; and


 


(b)             any other information that the
Administrative Agent may reasonably require for such purpose.


 


Each Lender shall promptly notify the
Administrative Agent of any change to the information provided by it pursuant
to this paragraph.


 


9.             The percentages of each
Lender for the purpose of A and C above and the rates of charge of each
Reference Bank for the purpose of E above shall be determined by the
Administrative Agent based upon the information supplied to it pursuant to
paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies
the Administrative Agent to the contrary, each Lender’s obligations in relation
to cash ratio deposits and Special Deposits are the same as those of a typical
bank from its jurisdiction of incorporation with an Applicable Lending Office
in the same jurisdiction as its Applicable Lending Office.


 


10.           The Administrative Agent
shall have no liability to any person if such determination results in an
Additional Cost Rate which over or under compensates any Lender and shall be
entitled to assume that the information provided by any Lender or Reference
Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all
respects.


 


11.           The  Administrative Agent shall distribute the
additional amounts received as a result of the MCR to the Lenders on the basis
of the Additional Cost Rate for
each Lender based on the information provided by each Lender and each Reference
Bank pursuant to paragraphs 3, 7 and 8 above.


 


12.           Any determination by the Administrative Agent
pursuant to this Schedule VII in relation to a formula, the MCR, an Additional
Cost Rate or any amount payable to a Lender shall, in the absence of manifest
error, be conclusive and binding on all Parties.


 


13.           The Administrative Agent may
from time to time, after consultation with the Borrower and the Lenders,
determine and provide notice to the Borrower and the Lenders of any amendments
which are required to be made to this Schedule VII in order to comply with any
change in law, regulation or any requirements from time to time imposed by the 


 

















 


Bank of England, the
Financial Services Authority or the European Central Bank (or, in any case, any
other authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all parties to the Credit Agreement.


 

















 


SCHEDULE VIII


 


SUBSIDIARIES


 


[See Section 5.01(m)]


 


	
  Legal Name

  	
   

  	
  Jurisdiction

  of Formation

  	
   

  	
  Type of
  Entity

  	
   

  	
  Equity
  Interest Holders

  	
   

  	
  Percentage
  of

  Equity

  Interests Held

  	
   

  
	
  KKR Sprint (KPE) Limited

  	
   

  	
  Cayman

  	
   

  	
  Limited Company

  	
   

  	
  KKR PEI SICAR, S.à r.l.

  	
   

  	
  100%

  	
   

  
	
  KKR PEI Alternative Investments Limited

  	
   

  	
  Cayman

  	
   

  	
  Limited Company

  	
   

  	
  KKR PEI Investments, L.P.

  	
   

  	
  100%

  	
   

  
	
  KKR PEI Japan Investment I, Ltd.

  	
   

  	
  Cayman

  	
   

  	
  Limited Company

  	
   

  	
  KKR PEI Investments, L.P.

  	
   

  	
  100%

  	
   

  
	
  KKR PEI SICAR, S.à r.l.

  	
   

  	
  Luxembourg

  	
   

  	
  Limited Liability Company

  	
   

  	
  KKR PEI Investments, L.P.

  	
   

  	
  100%

  	
   

  
	
  SEVRES IV, S.à r.l.

  	
   

  	
  Luxembourg

  	
   

  	
  Limited Liability Company

  	
   

  	
  KKR PEI SICAR, S.à r.l.

  	
   

  	
  100%

  	
   

  
	
  KKR PEI Securities Holdings, Ltd.

  	
   

  	
  Cayman

  	
   

  	
  Limited Company

  	
   

  	
  KKR PEI Investments, L.P.

  	
   

  	
  100%

  	
   

  
	
  KKR PEI Solar Holdings I, Ltd.

  	
   

  	
  Cayman

  	
   

  	
  Limited Company

  	
   

  	
  KKR PEI Investments, L.P.

  	
   

  	
  100%

  	
   

  
	
  KKR PEI Solar Holdings II, Ltd.

  	
   

  	
  Cayman

  	
   

  	
  Limited Company

  	
   

  	
  KKR PEI Investments, L.P.

  	
   

  	
  100%

  	
   

  
	
  Capmark Co-Investment LLC

  	
   

  	
  Delaware

  	
   

  	
  Limited Liability Company

  	
   

  	
  KKR PEI Investments, L.P.

  	
   

  	
  59.2%

  	
   

  
	
  KKR Glory (KPE) Limited

  	
   

  	
  Cayman

  	
   

  	
  Limited Company

  	
   

  	
  KKR PEI SICAR, S.à r.l.

  	
   

  	
  93.43%

  	
   

  



 

















 


EXHIBIT A


 


[FORM OF
NOTE]


 


PROMISSORY NOTE


 




	
  $[                  ]

  	
   

  	
  [                ],
  2007

  
	
   

  	
   

  	
  New York, New York

  






 


FOR VALUE RECEIVED, KKR PEI INVESTMENTS, L.P., a Guernsey
limited partnership (the “Borrower”) (acting through its general
partner, KKR PEI Associates, L.P., a Guernsey limited partnership acting
through its general partner, KKR PEI GP Limited), hereby promises to pay to the
order of [NAME OF LENDER] (the “Lender”),
at such of the offices of Citibank, N.A. in New York, New York as shall be
notified to the Borrower from time to time, the principal sum of [DOLLAR AMOUNT] [United States Dollars, in lawful money of
the United States] and in immediately available funds, on
                      ,
2012, or such lesser amount at any time as shall equal the then aggregate
outstanding principal amount of Loans by the Lender under the Credit Agreement
referred to below, and to pay interest on the unpaid principal amount hereof,
at such office, in like money and funds, for the period commencing on the date
hereof until the principal hereof shall be paid in full, at the rates per annum
and on the dates provided in the Credit Agreement referred to below.


 


This Note evidences
Loans made by the Lender under the Credit Agreement dated as of June 11,
2007 (as modified and supplemented and in effect from time to time, the “Credit
Agreement”) among the Borrower, the lenders party thereto (including
the Lender) and Citibank, N.A., as Administrative Agent.  Terms used but not defined in this Note have
the respective meanings assigned to them in the Credit Agreement.


 


The date, amount,
Type, Currency, interest rate and Interest Period of each Loan made by the
Lender to the Borrower, and each payment made on account of the principal
thereof, shall be recorded by the Lender on its books and, prior to any
transfer of this Note, endorsed by the Lender on the Schedule attached
hereto or any continuation thereof, provided that the failure of the
Lender to make any such recordation (or any error in making any such
recordation) or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Credit Agreement or
hereunder.


 


The Credit Agreement
provides for the acceleration of the maturity of this Note upon the occurrence
of certain events and for prepayments hereof upon the terms and conditions
specified therein.


 


Except as
permitted by Section 9.06 of the Credit Agreement, this Note may not be
assigned by the Lender to any other Person.


 

















 


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


 


	
   

  	
  KKR PEI INVESTMENTS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Its general partner KKR PEI Associates, L.P.,

  
	
   

  	
   

  	
  acting through its general partner

  
	
   

  	
   

  	
  KKR PEI GP Limited

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


SCHEDULE OF
LOANS


 


This Note
evidences Loans made under the within-described Credit Agreement to the
Borrower, on the dates, in the principal amounts and of the Types, and bearing
interest at the rates and having the Interest Period set forth below, subject
to the payments and prepayments of principal set forth below:


 


	
  Principal

  Amount of Loan

  (in Dollars)

  	
   

  	
  Currency

  	
   

  	
  Type of Loan

  	
   

  	
  Interest

  Rate and

  Period

  	
   

  	
  Amount Paid

  or Prepaid

  	
   

  	
  Unpaid

  Principal

  Amount

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 














 


EXHIBIT B


 


[FORM OF
GUARANTEE AND SECURITY AGREEMENT]


 


GUARANTEE AND SECURITY AGREEMENT


 


GUARANTEE AND
SECURITY AGREEMENT dated as of June 11, 2007, between KKR PEI Investments,
L.P., a Guernsey limited partnership (the “Borrower”) (acting through
its general partner, KKR PEI Associates, L.P., a Guernsey limited partnership
acting through its general partner, KKR PEI GP Limited), each of the
Subsidiaries of the Borrower identified under the caption “GUARANTORS” on the
signature pages hereto and each entity, if any, that becomes a “Guarantor”
hereunder as contemplated by Section 7.12 hereof (individually, a “Guarantor”
and, collectively, the “Guarantors” and, together with the Borrower, the
“Obligors”), and CITIBANK, N.A., as administrative agent for the parties
defined as “Lenders” under the Credit Agreement referred to below (in such
capacity, together with its successors in such capacity, the “Administrative
Agent”).


 


The Borrower, such
Lenders and the Administrative Agent are parties to a Credit Agreement dated as
of June 11, 2007 (as modified and supplemented and in effect from time to
time, the “Credit Agreement”), providing, subject to the terms and
conditions thereof, for extensions of credit (by means of loans and letters of
credit) to be made by such Lenders to the Borrower.  In addition, the Borrower may from time to
time be obligated to various of said lenders (or their affiliates) in respect
of one or more Hedging Agreements under and as defined in the Credit Agreement.


 


To induce such Lenders to
enter into the Credit Agreement and to extend credit thereunder and under the
Hedging Agreements, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Guarantors have agreed to
guarantee the Guaranteed Obligations (as hereinafter defined) and each Obligor
has agreed to grant a security interest in the Collateral (as so defined) as
security for the Secured Obligations (as so defined).


 


Accordingly, the
parties hereto agree as follows:


 


Section 1.  Definitions, Etc.


 


1.01         Terms Generally.  Terms used herein and not otherwise defined
herein are used herein as defined in the Credit Agreement.


 


1.02         Certain Uniform Commercial Code
Terms.  As used herein, the terms “Account”,
“Chattel Paper”, “Commodity Account”, “Commodity Contract”,
“Document”, “Deposit Account”, “General Intangible”, “Goods”,
“Instrument”, “Investment Property”, “Letter-of-Credit Right”,
“Payment Intangible”, “Proceeds” and “Promissory Note”,
have the respective meanings set forth in Article 9 of the NYUCC, and the
terms “Certificated Security”, “Entitlement Holder”, “Financial
Asset”, “Instruction”, “Securities Account”, “Security”,


 

















 


“Security
Certificate”, “Security Entitlement” and “Uncertificated Security”
have the respective meanings set forth in Article 8 of the NYUCC.


 


1.03         Additional Definitions.  In addition, as used herein:


 


“Collateral”
has the meaning assigned to such term in Section 4.


 


“Collateral
Account” has the meaning assigned to such term in Section 5.01.


 


“Guaranteed
Obligations” has the meaning assigned to such term in Section 2.01.


 


“Secured
Creditors” means, collectively, the Lenders (including each Issuing Lender)
and the Administrative Agent, any other holder from time to time of any of the
Secured Obligations and, in each case, their respective successors and assigns.


 


“Secured
Obligations” means, collectively, (a) in the case of the Borrower, (i) all
obligations of the Borrower under the Loan Documents to pay the principal of
and interest on the Loans and the Swing Line Loans and the L/C Reimbursement
Obligations and all fees, indemnification payments and other amounts
whatsoever, whether direct or indirect, absolute or contingent, now or
hereafter from time to time owing to the Secured Creditors or any of them under
the Loan Documents and (ii) all obligations of the Borrower to any Lender
(or any affiliate thereof) under any Hedging Agreement, (b) in the case of
the Guarantors, all obligations of the Guarantors under Section 2 hereof
and (c) in the case of each of the foregoing, including all interest
thereon and expenses related thereto, including any interest or expenses
accruing or arising after the commencement of any case with respect to the
Borrower under the United States Bankruptcy Code or any other bankruptcy or
insolvency law (whether or not such interest or expenses are allowed or
allowable as a claim in whole or in part in such case).


 


1.04         Treatment of Hedging Agreements.  For purposes hereof, it is understood that
any obligations of the Borrower to a Person arising under a Hedging Agreement
entered into with a Lender or an affiliate thereof shall nevertheless continue
to constitute Secured Obligations and Guaranteed Obligations for purposes
hereof, notwithstanding that such Person (or its affiliate) may have assigned
all of its Loans and other interests in the Credit Agreement and, therefore, at
the time a claim is to be made in respect of such obligations, such Person (or
its affiliate) is no longer a “Lender” party to the Credit Agreement, provided
that neither such Person nor any such affiliate shall be entitled to the
benefits of this Agreement (and such obligations shall not constitute Secured
Obligations or Guaranteed Obligations hereunder) unless, at or prior to the
time it ceased to be a Lender under the Credit Agreement, it shall have
notified the Administrative Agent in writing of the existence of such Hedging
Agreement.


 


2

















 


Section 2.  Guarantee.


 


2.01         The Guarantee.  Each Guarantor hereby guarantees to each of
the Secured Creditors and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of


 


(a)           the
principal of and interest on the Loans and the Swing Line Loans and the L/C
Reimbursement Obligations and all fees, indemnification payments and other
amounts whatsoever, whether direct or indirect, absolute or contingent, now or
hereafter from time to time owing to the Lenders or the Administrative Agent or
any of them by any Obligor under any of the Loan Documents, and


 


(b)           all obligations of the Borrower to
any Lender (or any affiliate thereof) under any Hedging Agreement,


 


in each case
strictly in accordance with the terms thereof and including all interest and
expenses accrued or incurred subsequent to the commencement of any bankruptcy
or insolvency proceeding with respect to the Borrower, whether or not such
interest or expenses are allowed as a claim in such proceeding (such
obligations being herein collectively called the “Guaranteed Obligations”).  The Guarantors hereby further jointly and
severally agree that if the Borrower shall fail to pay in full when due
(whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the Guarantors will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration
or otherwise) in accordance with the terms of such extension or renewal.


 


2.02         Obligations Unconditional.  The obligations of the Guarantors under Section 2.01
are absolute and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the
Borrower under any of the Loan Documents or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 2.02 that the obligations of the
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances.  Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not alter or impair the liability of the
Guarantors hereunder, which shall remain absolute and unconditional as
described above:


 


(i)            at any time or from time to time,
without notice to the Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such performance
or compliance shall be waived;


 


(ii)           any of the acts mentioned in any of
the provisions of the Loan Documents or any other agreement or instrument
referred to herein or therein shall be done or omitted;


 


3

















 


(iii)          the maturity of any of the Guaranteed
Obligations shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under any of the
Loan Documents shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in whole or
in part or otherwise dealt with; or


 


(iv)          any Lien in favor of any Secured
Creditor as security for any of the Guaranteed Obligations shall fail to be
perfected.


 


The Guarantors
hereby expressly waive diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that any Secured Creditor exhaust
any right, power or remedy or proceed against the Borrower under any of the
Loan Documents or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.


 


2.03         Reinstatement.  The obligations of the Guarantors under this Section 2
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Borrower in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Guarantors jointly and
severally agree that they will indemnify the Secured Creditors on demand for
all reasonable costs and expenses (including fees of counsel) incurred by the
Secured Creditors in connection with such rescission or restoration, including
any such costs and expenses incurred in defending against any claim alleging
that such payment constituted a preference, fraudulent transfer or similar
payment under any bankruptcy, insolvency or similar law.


 


2.04         Subrogation.  The Guarantors hereby jointly and severally
agree that until the payment and satisfaction in full of all Guaranteed
Obligations (other than contingent indemnity obligations not then due) and the
expiration and termination of the Commitments under the Credit Agreement and
the expiry, termination or cash collateralization or other back-stopping on
terms reasonably satisfactory to the relevant Issuing Lender, the
Administrative Agent and the Borrower of all Letters of Credit thereunder, they
shall not exercise any right or remedy arising by reason of any performance by
them of their guarantee in Section 2.01, whether by subrogation or
otherwise, against the Borrower or any other guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed Obligations.


 


2.05         Remedies.  The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders, the obligations of the
Borrower under the Credit Agreement may be declared to be forthwith due and
payable as provided in Article VII of the Credit Agreement (and shall be
deemed to have become automatically due and payable in the circumstances
provided in said Article VII) for purposes of Section 2.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable)
as against the Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by the Guarantors for purposes of Section 2.01.


 


4

















 


2.06         Instrument for the Payment of Money.  Each Guarantor acknowledges that the
guarantee in this Section 2 constitutes an instrument for the payment of
money, and consents and agrees that any Secured Creditor, at its sole option,
in the event of a dispute by such Guarantor in the payment of any moneys due
hereunder, shall have the right to bring motion-action under New York CPLR Section 3213.


 


2.07         Continuing Guarantee.  The guarantee in this Section 2 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.


 


2.08         Rights of Contribution.  The Obligors hereby agree, as between
themselves, that if any Guarantor shall become an Excess Funding Guarantor (as
defined below) by reason of the payment by such Guarantor of any Guaranteed
Obligations, then each other Guarantor shall, on demand of such Excess Funding
Guarantor (but subject to the next sentence), pay to such Excess Funding
Guarantor an amount equal to such Guarantor’s Pro Rata Share (as defined below
and determined, for this purpose, without reference to the properties, debts
and liabilities of such Excess Funding Guarantor) of the Excess Payment (as
defined below) in respect of such Guaranteed Obligations.  The payment obligation of a Guarantor to any
Excess Funding Guarantor under this Section 2.08 shall be subordinate and
subject in right of payment to the prior payment in full of the obligations of
such Guarantor under the other provisions of this Section 2 and such
Excess Funding Guarantor shall not exercise any right or remedy with respect to
such excess until payment and satisfaction in full of all of such obligations.


 


For purposes of
this Section 2.08, (i) “Excess Funding Guarantor” means, in
respect of any Guaranteed Obligations, a Guarantor that has paid an amount in
excess of its Pro Rata Share of such Guaranteed Obligations, (ii) “Excess
Payment” means, in respect of any Guaranteed Obligations, the amount paid
by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) “Pro Rata Share” means, for any
Guarantor, the ratio (expressed as a percentage) of (x) the amount by
which the aggregate fair saleable value of all properties of such Guarantor
(excluding any shares of stock or other equity interest of any other Guarantor)
exceeds the amount of all the debts and liabilities of such Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities,
but excluding the obligations of such Guarantor hereunder and any obligations
of any other Guarantor that have been Guaranteed by such Guarantor) to (y) the
amount by which the aggregate fair saleable value of all properties of the
Borrower and all of the Guarantors exceeds the amount of all the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of the Obligors hereunder and under
the other Loan Documents) of all of the Guarantors, determined (A) with
respect to any Guarantor that is a party hereto on the date hereof, as of the
date hereof, and (B) with respect to any other Guarantor, as of the date
such Guarantor becomes a Guarantor hereunder.


 


5

















 


Section 3.  Representations and Warranties.  Each Obligor represents and warrants to the
Lenders and the Administrative Agent for the benefit of the Secured Creditors
that:


 


3.01         Organizational Matters;
Enforceability, Etc.  In the case of
each Guarantor the representations and warranties of the Borrower relating to
such Guarantor in Article V of the Credit Agreement are true as of the
date such representations were made.


 


3.02         Title.  Such Obligor is the sole beneficial owner of
the Collateral in which it purports to grant a security interest pursuant to Section 4
and no Lien exists upon the Collateral (and no right or option to acquire the
same exists in favor of any other Person) other than (a) Liens permitted
by the Credit Agreement and (b) the security interest created or provided
for herein, which security interest constitutes a valid first and prior
perfected Lien on the Collateral, provided that no Obligor shall be required to
perfect the security interests created or provided for herein (other than with
respect to Portfolio Investments) by any means other than filings pursuant to
the NYUCC, together with such steps as may be required
under applicable law to perfect the security interests in any Equity Interest
held by such Obligor in any of its Subsidiaries.


 


3.03         Names, Etc.  The full and correct legal name, type of
organization, jurisdiction of organization, organizational ID number (if
applicable) and mailing address of each Obligor as of the date hereof are
correctly set forth in Annex 1. 
Said Annex 1 correctly specifies (a) the place of business of
such Obligor or, if such Obligor has more than one place of business, the
location of the chief executive office of such Obligor, and (b) each location where any
financing statement naming such Obligor as debtor is currently on file.


 


3.04         Changes in Circumstances.  Such Obligor has not (a) within the
period of four months prior to the date hereof, changed its location (as
defined in Section 9-307 of the NYUCC), (b)  heretofore changed its
name, or (c)  heretofore become a “new debtor” (as defined in Section 9-102(a)(56)
of the NYUCC) with respect to a currently effective security agreement
previously entered into by any other Person.


 


Section 4.  Collateral.  As collateral security for the payment in
full when due (whether at stated maturity, by acceleration or otherwise) of the
Secured Obligations, each Obligor hereby pledges and grants to the
Administrative Agent for the benefit of the Secured Creditors as hereinafter
provided a security interest in all of such Obligor’s right, title and interest
in, to and under the following property, in each case whether tangible or
intangible, wherever located, and whether now owned by such Obligor or
hereafter acquired and whether now existing or hereafter coming into existence
(all of the property described in this Section 4 being collectively
referred to herein as “Collateral”):


 


(a)                                  all Portfolio Investments of such
Obligor;


 


(b)                                 in the case of any Portfolio Investment
in an Investment Fund, all Investment Fund Payment Rights relating thereto;


 


(c)                                  all Accounts, Chattel Paper, Commodity
Accounts, Commodity Contracts, Deposit Accounts, Documents, General
Intangibles, Instruments, 


 


6

















 


Securities,
Securities Accounts and other Investment Property, Letter-of-Credit Rights and
Promissory Notes, whether constituting or evidencing Portfolio Investments or
otherwise, and Goods; and


 


(d)                                 all Proceeds of any of the Collateral,
all substitutions and replacements for, any of the Collateral, and, to the
extent related to any Collateral, all books, correspondence, credit files,
records, invoices and other papers (including all tapes, cards, computer runs
and other papers and documents in the possession or under the control of such
Obligor or any computer bureau or service company from time to time acting for
such Obligor),


 


EXCLUDING, HOWEVER, (i) cash
and cash equivalents securing Third-Party Hedge Obligations, (ii) Excluded
Investments and (iii) any and all tangible assets, or classes of tangible
assets, in respect of which the Administrative Agent and the Borrower agree in
writing that the cost of obtaining and perfecting a security interest would be
excessive in relation to the value of such assets (it being understood that
assets excluded under clauses (i), (ii) and (iii) above shall be
excluded from the Borrowing Base) and (iv) any Equity Interest in an
Investment Fund constituting a Portfolio Investment and any Equity Interests in
the relevant Investment Fund Holder, to the extent that the grant of a security
interest in respect of such Portfolio Investment or any Equity Interests would constitute
a violation of a valid and enforceable contractual restriction with respect
thereto; provided that the foregoing clause (iv) shall not exclude,
nor affect, limit, restrict or impair the grant by any Obligor of a security
interest pursuant to this Agreement in, any Investment Fund Payment Rights.


 


Section 5.  Cash Proceeds of Collateral.


 


5.01         Collateral Account.  The Administrative Agent will, if so directed
by the Issuing Lender or the Majority Lenders, as applicable, cause to be
established at a banking institution to be selected by the Administrative Agent
and acceptable to the Borrower a cash collateral account (the “Collateral
Account”), that


 


(i)            to the extent of all Investment
Property or Financial Assets (other than cash) credited thereto shall be a
Securities Account in respect of which the Administrative Agent shall be the
Entitlement Holder or which shall be subject to a control agreement in form and
substance satisfactory to the Administrative Agreement, and


 


(ii)           to the extent of any cash credited
thereto shall be a Deposit Account in respect of which the Administrative Agent
shall be the depositary bank’s customer, and


 


into which each
Obligor agrees to deposit from time to time the cash proceeds of any of the
Collateral required to be delivered to the Administrative Agent pursuant to any
of the Loan Documents, or pursuant hereto, and into which the Obligors may from
time to time deposit any additional amounts that it wishes to provide as
additional collateral security hereunder. 
The Collateral Account, and any money or other property from time to
time therein, shall constitute part of the Collateral hereunder and shall not
constitute payment of the Secured Obligations until applied as hereinafter
provided.


 


7

















 


5.02         Withdrawals.  The balance from time to time in the
Collateral Account shall be subject to withdrawal only as provided in this Section 5.02
and Section 5.03 below.  The
Administrative Agent shall (except as otherwise provided in the last sentence
of this Section 5.02) remit the collected balance standing to the credit
of the Collateral Account to or upon the order of the relevant Obligor as such
Obligor (through the Borrower) shall from time to time instruct.  At any time following the occurrence and
during the continuance of an Event of Default, the Administrative Agent may
(and, if instructed by the Lenders as provided in the Credit Agreement, shall)
in its (or their) discretion apply or cause to be applied (subject to collection)
the balance from time to time standing to the credit of the Collateral Account
(regardless of the origin thereof) to the prepayment of the principal of the
Loans (and/or to provide cover for L/C Exposure) in the manner specified
in Article VII of the Credit Agreement.


 


5.03         Investment of Balance in Collateral
Account.  The cash balance standing
to the credit of the Collateral Account shall be invested from time to time as
the respective Obligor through the Borrower or, after the occurrence and during
the continuance of an Event of Default, the Administrative Agent shall
determine (but, in any event, within reasonable parameters requested by the
Borrower), which investments shall be held in the name and be under the control
of the Administrative Agent (and credited to the Collateral Account), provided
that at any time after the occurrence and during the continuance of an Event of
Default, the Administrative Agent may (and, if instructed by the Lenders as
provided in the Credit Agreement, shall) in its (or their) discretion at any
time and from time to time elect to liquidate any such investments and to apply
or cause to be applied the proceeds thereof to the payment of the Secured
Obligations then due and payable in the manner specified in Section 6.09.


 


5.04         Cover for L/C Exposure.  Amounts deposited into the Collateral Account
as cover for LC Exposure under the Credit Agreement as contemplated by Article VII
thereof shall be held by the Administrative Agent in a separate sub-account
(designated “L/C Exposure Sub-Account”) and all amounts held in such
sub-account shall constitute collateral security first for the
L/C Exposure outstanding from time to time and second as collateral
security for the other Secured Obligations hereunder.


 


Section 6.  Further Assurances; Remedies.  In furtherance of the grant of the security
interest pursuant to Section 4, the Obligors hereby jointly and severally
agree with the Administrative Agent for the benefit of the Secured Creditors as
follows:


 


6.01         Delivery and Other Perfection.  Each Obligor shall promptly from time to time
give, execute, deliver, file, record, authorize or obtain all such financing
statements, continuation statements, notices, instruments, documents,
agreements or consents or other papers as may be necessary to create, preserve,
perfect, maintain the perfection of or validate the security interest granted
pursuant hereto or to enable the Administrative Agent to exercise and enforce
its rights hereunder with respect to such security interest.


 


6.02         Other Financing Statements or
Control.  No Obligor shall (a) file
or suffer to be on file, or authorize or permit to be filed or to be on file,
in any jurisdiction, any financing statement or like instrument with respect to
any of the Collateral in which the Administrative


 


8

















 


Agent is not named
as the sole secured party for the benefit of the Secured Creditors, or (b) cause
or permit any Person other than the Administrative Agent to have “control” (as
defined in Section 9-106 of the NYUCC) of any Portfolio Investment or any
Equity Interest held by such Obligor in any of its Subsidiaries constituting
part of the Collateral.


 


6.03         Preservation of Rights.  The Administrative Agent shall not be
required to take steps necessary to preserve any rights against prior parties
to any of the Collateral.


 


6.04         Remedies.


 


(a)           Rights and Remedies Generally upon
Default.  If an Event of Default
shall have occurred and is continuing and upon receipt by the Borrower of
written notice thereof from the Administrative Agent, the Administrative Agent
shall have all of the rights and remedies with respect to the Collateral of a
secured party under the NYUCC (whether or not the NYUCC is in effect in the
jurisdiction where the rights and remedies are asserted) and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted, including the right, to the fullest extent permitted by law, to
exercise all voting, consensual and other powers of ownership pertaining to the
Collateral as if the Administrative Agent were the sole and absolute owner
thereof (and each Obligor agrees to take all such action as may be appropriate
to give effect to such right); and without limiting the foregoing:


 


(i)            the Administrative Agent in its
discretion may, in its name or in the name of any Obligor or otherwise, demand,
sue for, collect or receive any money or other property at any time payable or
receivable on account of or in exchange for any of the Collateral, but shall be
under no obligation to do so;


 


(ii)           the Administrative Agent may make any
reasonable compromise or settlement deemed desirable with respect to any of the
Collateral and may extend the time of payment, arrange for payment in
installments, or otherwise modify the terms of, any of the Collateral;


 


(iii)          the Administrative Agent may require
the Obligors to notify (and each Obligor hereby authorizes the Administrative
Agent to so notify) each account debtor in respect of any Account, Chattel
Paper or General Intangible, and each obligor on any Instrument, constituting
part of the Collateral that such Collateral has been assigned to the
Administrative Agent hereunder, and to instruct that any payments due or to
become due in respect of such Collateral shall be made directly to the
Administrative Agent or as it may direct (and if any such payments, or any
other Proceeds of Collateral, are received by any Obligor they shall be held in
trust by such Obligor for the benefit of the Administrative Agent and as
promptly as possible remitted or delivered to the Administrative Agent for
application as provided herein);


 


(iv)          the Administrative Agent may prohibit
withdrawals from, and/or apply to the payment of the Secured Obligations, any
money or other property in the Collateral Account and/or any Investment Fund
Payment Account;


 


9

















 


(v)           the Administrative Agent may require
the Obligors to cause any securities constituting part of the Collateral to be
transferred of record into the name of the Administrative Agent or its nominee
(and the Administrative Agent agrees that if any of such securities is
transferred into its name or the name of its nominee, the Administrative Agent
will thereafter promptly give to respective Obligor (through the Borrower)
copies of any notices and communications received by it with respect to such
securities); and


 


(vi)          the Administrative Agent may (subject
to any contractual rights of first offer, which in any event shall include (i) the
pro rata right of first offer of each shareholder, member or other equity
holder (other than the relevant Obligor), in the case of the exercise of
remedies with respect to any private equity co-investment, and (ii) the
right of first offer of the general partner of an Investment Fund, in the case
of the exercise of remedies with respect to any Investment Fund; and further
subject to any transfer restrictions affecting any shareholder, member, limited
partner or other equity holder in respect of such Portfolio Investment) sell,
lease, assign or otherwise dispose of all or any part of the Collateral, at
such place or places as the Administrative Agent deems best, and for cash or
for credit or for future delivery (without thereby assuming any credit risk),
at public or private sale, without demand of performance or notice of intention
to effect any such disposition or of the time or place thereof (except such
notice as is required by applicable statute and cannot be waived), and the
Administrative Agent or any other Secured Creditor or anyone else may be the
purchaser, lessee, assignee or recipient of any or all of the Collateral so
disposed of at any public sale (or, to the extent permitted by law, at any private
sale) and thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory or
otherwise), of the Obligors, any such demand, notice and right or equity being
hereby expressly waived and released. 
The Administrative Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be
made at any time or place to which the sale may be so adjourned.


 


The Proceeds of
each collection, sale or other disposition under this Section 6.05,
including by virtue of the exercise of any license granted to the
Administrative Agent in Section 6.04(b), shall be applied in accordance
with Section 6.09.


 


(b)           Certain Securities Act Limitations.  The Obligors recognize that, by reason of
certain prohibitions contained in the Securities Act of 1933, as amended, and
applicable state securities laws, the Administrative Agent may be compelled,
with respect to any sale of all or any part of the Collateral, to limit
purchasers to those who will agree, among other things, to acquire the
Collateral for their own account, for investment and not with a view to the
distribution or resale thereof.  The
Obligors acknowledge that any such private sales may be at prices and on terms
less favorable to the Administrative Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agree that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Administrative Agent shall have no
obligation to engage in public sales and no


 


10














 


obligation to
delay the sale of any Collateral for the period of time necessary to permit the
issuer thereof to register it for public sale.


 


(c)           Notice.  The Obligors agree that to the extent the
Administrative Agent is required by applicable law to give reasonable prior
notice of any sale or other disposition of any Collateral, fifteen Business
Days’ notice shall be deemed to constitute reasonable prior notice.


 


6.06         Deficiency.  If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 6.05 are
insufficient to cover the costs and expenses of such realization and the
payment in full of the Secured Obligations, the Obligors shall remain liable
for any deficiency.


 


6.07         Locations; Names, Etc.  Without at least 30 days’ prior written
notice to the Administrative Agent, no Obligor shall (i) change its
location (as defined in Section 9-307 of the NYUCC), (ii) change its
name from the name shown as its current legal name on Annex 1, or (iii) agree
to or authorize any modification of the terms of any item of Collateral that
would result in a change thereof from one Uniform Commercial Code category to
another such category (such as from a General Intangible to Investment
Property), if the effect thereof would be to result in a loss of perfection of,
or diminution of priority for, the security interests created hereunder in such
item of Collateral, or the loss of control (within the meaning of Section 9-104,
9-105, 9-106 or 9-107 of the NYUCC) over such item of Collateral.


 


6.08         Private Sale.  The Secured Creditors shall incur no
liability as a result of the sale of the Collateral, or any part thereof, at
any private sale pursuant to Section 6.05 conducted in a commercially
reasonable manner.  Each Obligor hereby
waives any claims against the Secured Creditors arising by reason of the fact
that the price at which the Collateral may have been sold at such a private
sale was less than the price that might have been obtained at a public sale or
was less than the aggregate amount of the Secured Obligations, even if the
Administrative Agent accepts the first offer received and does not offer the
Collateral to more than one offeree.


 


6.09         Application of Proceeds.  Except as otherwise herein expressly provided
and except as provided below in this Section 6.09, the Proceeds of any
collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Administrative
Agent under Section 5 or this Section 6, shall be applied by the
Administrative Agent:


 


First, to the payment of the costs and
expenses of such collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Administrative Agent and the fees and
expenses of its agents and counsel, and all expenses incurred and advances made
by the Administrative Agent in connection therewith;


 


Next, to the payment in full of the Secured
Obligations, in each case equally and ratably in accordance with the respective
amounts thereof then due and owing or as the Lenders holding the same may
otherwise agree; and


 


11

















 


Finally, to the payment to the relevant Obligor,
or its successors or assigns, or as a court of competent jurisdiction may
direct, of any surplus then remaining.


 


Notwithstanding
the foregoing, the proceeds of any cash or other amounts held in the “L/C Exposure
Sub-Account” of the Collateral Account pursuant to Section 5.04 shall be
applied first to the L/C Exposure outstanding from time to time and
second to the other Secured Obligations in the manner provided above in
this Section 6.09.


 


6.10         Attorney-in-Fact.  Without limiting any rights or powers granted
by this Agreement to the Administrative Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Administrative Agent is hereby appointed the
attorney-in-fact of each Obligor for the purpose of carrying out the provisions
of this Section 6 and taking any action and executing any instruments that
the Administrative Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment as attorney-in-fact is irrevocable and
coupled with an interest.  Without
limiting the generality of the foregoing, so long as the Administrative Agent
shall be entitled under this Section 6 to make collections in respect of
the Collateral, the Administrative Agent shall have the right and power to
receive, endorse and collect all checks made payable to the order of any
Obligor representing any dividend, payment or other distribution in respect of
the Collateral or any part thereof and to give full discharge for the same.


 


6.11         Termination.  When all Secured Obligations shall have been
paid in full (other than contingent indemnity obligations not then due) and the
Commitments of the Lenders under the Credit Agreement and all L/C Exposure
shall have expired or been terminated or have been cash collateralized or
otherwise back-stopped on terms reasonably satisfactory to the relevant Issuing
Lender, the Administrative Agent and the Borrower, this Agreement shall
terminate, and the Administrative Agent shall forthwith cause to be assigned,
transferred and delivered, against receipt but without any recourse, warranty
or representation whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of the relevant Obligor.  The Administrative Agent shall also, at the
expense of such Obligor, execute and deliver to the respective Obligor upon
such termination such Uniform Commercial Code termination statements, as shall
be reasonably requested by the respective Obligor to effect the termination and
release of the Liens on the Collateral as required by this Section 6.11.


 


6.12         Further Assurances.  Each Obligor agrees that, from time to time
upon the written request of the Administrative Agent, such Obligor will execute
and deliver such further documents and do such other acts and things as the
Administrative Agent may reasonably request in order fully to effect the
purposes of this Agreement.


 


Section 7.  Miscellaneous.


 


7.01         Notices.  All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at its “Address for Notices” specified pursuant to Section 9.02
of the Credit Agreement and shall be deemed to have been given at the times
specified in said Section 9.02.  Any
notice to be delivered to any Guarantor


 


12

















 


hereunder shall be
delivered to the Borrower (at its aforesaid address) on behalf of such
Guarantor.


 


7.02         No Waiver.  No failure on the part of any Secured
Creditor to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by any Secured Creditor of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.  The remedies herein are cumulative and are
not exclusive of any remedies provided by law.


 


7.03         Amendments, Etc.  The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by each
Obligor and the Administrative Agent (with the consent of the Lenders as
specified in Section 9.01 of the Credit Agreement).  Any such amendment or waiver shall be binding
upon the Secured Creditors and each Obligor.


 


7.04         Expenses.  The Obligors jointly and severally agree to
reimburse each of the Secured Creditors for all reasonable costs and expenses
incurred by them (including the reasonable fees and expenses of one legal
counsel for the Secured Creditors in each relevant jurisdiction or of more than
one such legal counsel to the extent any Secured Creditor reasonably determines
that there is an actual conflict of interest requiring the employment of
separate legal counsel) in connection with (i) any Default and any
enforcement or collection proceeding resulting therefrom, including all manner
of participation in or other involvement with (w) performance by the
Administrative Agent of any obligations of the Obligors in respect of the
Collateral that the Obligors have failed or refused to perform, (x) bankruptcy,
insolvency, receivership, foreclosure, winding up or liquidation proceedings,
or any actual or attempted sale, or any exchange, enforcement, collection,
compromise or settlement in respect of any of the Collateral, and for the care
of the Collateral and defending or asserting rights and claims of the
Administrative Agent in respect thereof, by litigation or otherwise, including
expenses of insurance, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (ii) the
enforcement of this Section 7.04, and all such costs and expenses shall be
Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 4.


 


7.05         Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of each Obligor
and the Secured Creditors (provided that no Obligor shall assign or
transfer its rights or obligations hereunder without the prior written consent
of the Administrative Agent).


 


7.06         Counterparts.  This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.


 


13

















 


7.07  Governing Law;
Submission to Jurisdiction; Etc.


 


(a)           Governing Law.  This Agreement shall be construed in
accordance with and governed by the law of the State of New York.


 


(b)           Submission to Jurisdiction.  Each Guarantor hereby irrevocably and
unconditionally submits, for itself and its Property, to the nonexclusive
jurisdiction of the courts of the State of New York sitting in New York County
and of the United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each Guarantor irrevocably agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by applicable law, in such Federal court.  Each Guarantor 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 shall
affect any right that any Secured Creditor may otherwise have to bring any
action or proceeding relating to this Agreement against any Obligor or its
properties in the courts of any jurisdiction.


 


(c)           Waiver of Venue.  Each Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section.  Each Guarantor 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 Guarantor agrees that service of process
in any such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to KKR KPE LLC (the “Process Agent”) as agent for such
Guarantor in New York, New York for service of process at its address set forth
in Section 9.02 of the Credit Agreement, or at such other address of which
the Administrative Agent shall have been notified in writing by such Guarantor;
provided, that if the Process Agent changes its location (outside the Borough
of Manhattan) or ceases to act as such Guarantor’s agent for service of
process, such Guarantor will, by an instrument reasonably satisfactory to the
Administrative Agent, promptly appoint another Person (subject to the approval
of the Administrative Agent) in the Borough of Manhattan, New York, New York to
act as such Guarantor’s agent for service of process.  Each other party hereto irrevocably consents
to service of process in the manner provided for notices in Section 9.02
of the Credit Agreement.  Nothing in this
Agreement will affect the right of any party to serve process in any other
manner permitted by applicable law.


 


(e)           Waiver of Sovereign Immunity.  To the extent that a Guarantor may be or
become entitled to claim for itself or its Property any immunity on the ground
of sovereignty or the like from suit, court jurisdiction, attachment prior to
judgment, attachment in aid of execution of a judgment or execution of a
judgment, and to the extent that in any such jurisdiction there may be
attributed such an immunity (whether or not claimed), such Guarantor hereby
irrevocably agrees not to claim and hereby irrevocably waives such immunity
with respect to its obligations under this Agreement.


 


14

















 


7.08         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 THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY 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 AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


7.09         Captions.  The captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.


 


7.10         Agents and Attorneys-in-Fact.  The Administrative Agent may employ agents
and attorneys-in-fact in connection herewith and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected
by it in good faith.


 


7.11         Severability.  If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (a) the other provisions hereof shall remain in full force and effect
in such jurisdiction and shall be liberally construed in favor of the Secured
Creditors in order to carry out the intentions of the parties hereto as nearly
as may be possible and (b) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.


 


7.12         Additional Subsidiary Guarantors.  Any Wholly-Owned Subsidiary of the Borrower
formed or acquired after the date hereof may become a “Guarantor” under this
Agreement, by executing and delivering to the Administrative Agent a Guarantee
Assumption Agreement in the form of Exhibit 1 hereto (together with an
appropriate legal opinion of counsel, as referred to in said Exhibit 1).  Accordingly, upon the execution and delivery
of any such Guarantee Assumption Agreement by any such new Subsidiary, such new
Subsidiary shall automatically and immediately, and without any further action
on the part of any Person, become a “Guarantor” and an “Obligor” under and for
all purposes of this Agreement.  In
addition, upon the execution and delivery of any such Guarantee Assumption
Agreement, the new Guarantor makes the representations and warranties set forth
in Section 3 hereof.


 


7.13  Droit de Discussion.  Any right which at any time any Obligor may
have under the existing or future laws of Guernsey whether by virtue of the droit de discussion or otherwise to require that recourse be
had to the assets of any other person before any claim is enforced against such
Obligor in respect of the obligations assumed by such Obligor under or in
connection with any Loan Document is hereby waived.


 


15

















 


7.14  Droit de Division.  Any right which at any time any Obligor may
have under the existing or future laws of Guernsey whether by virtue of the droit de division or otherwise to require that any liability
under any guarantee or indemnity given in or in connection with any Loan
Document be divided or apportioned with any other person or reduced in any
manner whatsoever is hereby waived.


 


7.15  Luxembourg Obligor Limitations.  Notwithstanding any other provision of this
Agreement to the contrary, the liabilities hereunder of any Obligor which is
organized under the laws of the Grand Duchy of Luxembourg in relation to the
obligations of any direct or indirect parent company and/or of any Subsidiary
thereof which is not its own Subsidiary shall (a) be limited at any time
to an aggregate amount not exceeding 95% of the greater of such Obligor’s own
funds “capitaux propres” (as determined by
article 34 of the Luxembourg law of 19 December 2002 in the Register of
Commerce and Companies) as reflected in its most recently approved financial
statements or existing as at the original date of this Agreement and (b) not
apply to any payment which, if made, would amount to prohibited financial
assistance as provided in article 49-6 of the Luxembourg law of 10 August 1915
on commercial companies, as amended.


 


16

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Guarantee and Security Agreement
to be duly executed and delivered as of the day and year first above written.


 


	
   

  	
  KKR PEI INVESTMENTS,
  L.P.

  
	
   

  	
   

  
	
   

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

  
	
   

  	
  By:  KKR PEI
  GP Limited, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KKR SPRINT (KPE)
  LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KKR PEI ALTERNATIVE
  INVESTMENTS LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KKR PEI JAPAN
  INVESTMENT I, LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SEVRES IV, S.À R.L.,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


17

















 


	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  



 


18

















 


EXHIBIT 1


 


[Form of Guarantee Assumption Agreement]


 


GUARANTEE ASSUMPTION AGREEMENT


 


GUARANTEE
ASSUMPTION AGREEMENT dated as of
                     ,
2007 by [NAME OF ADDITIONAL GUARANTOR], a
                
corporation (the “Additional Guarantor”), in favor of Citibank, N.A., as
administrative agent for the parties defined as “Lenders” under the Credit
Agreement referred to below (in such capacity, together with its successors in
such capacity, the “Administrative Agent”).


 


KKR PEI Investments,
L.P., a Guernsey limited partnership (the “Borrower”) (acting through its general partner, KKR
PEI Associates, L.P., a Guernsey limited partnership acting through its general
partner, KKR PEI GP Limited), the Guarantors referred to therein and the
Administrative Agent are parties to a Credit Agreement dated as of June 11,
2007 (as modified and supplemented and in effect from time to time, the “Credit
Agreement”).  In connection with the
Credit Agreement, the Borrower, the Guarantors referred to therein and the
Administrative Agent are parties to a Guarantee and Security Agreement dated as
of June 11, 2007 (as modified and supplemented and in effect from time to
time, the “Guarantee and Security Agreement”).


 


Pursuant
to Section 7.12 of the Guarantee and Security Agreement, the Additional
Guarantor hereby agrees to become a “Guarantor” for all purposes of the Credit
Agreement, and a “Guarantor” for all purposes of the Guarantee and Security
Agreement.  Without limiting the
foregoing, the Additional Guarantor hereby, jointly and severally with the
other Guarantors, guarantees to each Secured Creditor and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of all Guaranteed Obligations (as
defined in Section 2.01 of the Guarantee and Security Agreement) in the
same manner and to the same extent as is provided in Section 2 of the Guarantee and
Security Agreement.  In addition, the
Additional Guarantor hereby makes the representations and warranties set forth
in Section 3 of the Guarantee and Security Agreement, with respect to itself
and its obligations under this Agreement, as if each reference in such Sections
to the Loan Documents included reference to this Agreement.


 


The
Additional Guarantor hereby instructs its counsel to deliver any opinions to
the Secured Creditors required to be delivered in connection with the execution
and delivery hereof.


 


19

















 


IN
WITNESS WHEREOF, the Additional Guarantor has caused this Guarantee Assumption
Agreement to be duly executed and delivered as of the day and year first above
written.


 


	
   

  	
  [NAME
  OF ADDITIONAL SUBSIDIARY GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Accepted
  and agreed:

  	
   

  
	
   

  	
   

  
	
  [NAME
  OF ADMINISTRATIVE AGENT],

  	
   

  
	
  as
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  



 

















 


ANNEX 1


 


FILING DETAILS


 


[See Sections 3.03 and 3.04 and 6.07]


 


1.              Name Etc.


 


	
  Legal
  Name

  	
   

  	
  Type of

  Organization

  	
   

  	
  Jurisdiction

  of

  Organization

  	
   

  	
  Place of Business

  	
   

  	
  Filing

  Jurisdiction

  
	
  KKR PEI Investments,
  L.P.

  	
   

  	
  Limited Partnership

  	
   

  	
  Guernsey

  	
   

  	
  P.O. Box 255

  Trafalgar Court, Les Banques

  St. Peter Port, Guernsey GY1 3QL Channel Islands

  	
   

  	
  Washington, D.C.

  
	
  KKR Sprint (KPE)
  Limited

  	
   

  	
  Limited Liability
  Company

  	
   

  	
  Cayman

  	
   

  	
  M&C Corporate
  Services Limited,

  PO Box 309GT,

  Ugland House, South Church Street, George Town,

  Grand Cayman, Cayman Islands

  	
   

  	
  Washington, D.C.

  
	
  KKR PEI Alternative
  Investments Limited

  	
   

  	
  Limited Liability
  Company

  	
   

  	
  Cayman

  	
   

  	
  M&C Corporate
  Services Limited,

  PO Box 309GT,

  Ugland House, South Church Street, George Town,

  Grand Cayman, Cayman Islands

  	
   

  	
  Washington, D.C.

  
	
  KKR PEI Japan
  Investment I, Ltd.

  	
   

  	
  Limited Liability
  Company

  	
   

  	
  Cayman

  	
   

  	
  M&C Corporate
  Services Limited,

  PO Box 309GT,

  Ugland House, South Church Street, George Town,

  Grand Cayman, Cayman Islands

  	
   

  	
  Washington, D.C.

  
	
  SEVRES IV, S.à r.l.

  	
   

  	
  Limited Liability
  Company

  	
   

  	
  Luxembourg

  	
   

  	
  59, rue du Rollingergrund,

  L-2440 Luxembourg

  	
   

  	
  Washington, D.C.

  



 


2.               Change in Locations; Names, Etc.


 


None


 

















 


ANNEX 2


 


NEW DEBTOR EVENTS


 


[See Section 3.04]


 


None.


 














 


EXHIBIT C


 


[FORM OF NOTICE OF
BORROWING]


 


NOTICE OF BORROWING


 


[Date]


 


Citibank, N.A., as Administrative Agent


for the Lenders parties to the Revolving Credit


Agreement referred to below


[2 Penns Ways, Suite 200


New Castle, Delaware 
19720]


 


Attention:  [                ]


 


Ladies and Gentlemen:


 


The undersigned, KKR PEI Investments, L.P. (the “Borrower”)
(acting through its general partner, KKR PEI Associates, L.P., a Guernsey
limited partnership acting through its general partner, KKR PEI GP Limited),
refers to the Credit Agreement dated as of June 11, 2007 (as from time to
time amended, the “Credit Agreement”, the terms defined therein being
used herein as therein defined), among the undersigned, the Lenders party
thereto and Citibank, N.A., as Administrative Agent for said Lenders, and
hereby give you notice, irrevocably, pursuant to Section 2.01(b) of
the Credit Agreement, that the undersigned hereby request a Borrowing of Loans
thereunder, and in that connection set forth below the information relating to
such Borrowing (the “Proposed Borrowing”) as required by
Section 2.01(b) of the Credit Agreement:


 


(i)                                     The Business Day of the Proposed
Borrowing is
                      
    ,           .


 


(ii)  The
aggregate amount of the Proposed Borrowing stated in Dollars is
$                      
and the Currency thereof is
                    .


 


(iii)  The
initial Interest Period for each Loan made as part of the Proposed Borrowing is
            
month[s]](1).


 


The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Borrowing:


 


(A)  the
representations and warranties contained in Section 4.01 are true and
correct in all material respects, as though made on and as of such date; and


 






(1)                                  For Eurocurrency Loans only.


 

















 


(B)  no event
has occurred and is continuing, or would result from such Proposed Borrowing or
from the application of the proceeds therefrom, which constitutes an Event of
Default or a Default.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  KKR PEI INVESTMENTS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Its general partner KKR PEI Associates, L.P.,

  
	
   

  	
   

  	
  acting through its general partner

  
	
   

  	
   

  	
  KKR PEI GP Limited

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
    Name:

  
	
   

  	
    Title:

  



 


2

















 


EXHIBIT D-1


 


[FORM OF OPINION OF
SPECIAL GUERNSEY COUNSEL 

TO OBLIGORS]


 


Citibank, N.A.


2 Penns Ways, Suite 200


New Castle, Delaware 19720


 


in its capacity as administrative agent under the
Credit Agreement (defined at paragraph 1.1 of this opinion) (the “Administrative Agent”)


 


and to each Lender (as defined in the Credit
Agreement) from time to time party to the Credit Agreement referred to below


 


[    ]
2007


 


Dear Sirs


 


KKR PEI Investments, L.P. (the
“Limited Partnership”), KKR PEI Associates, L.P. (the “General Partner” and,
together with the Limited Partnership, the “Partnership Entities”), and KKR PEI
GP Limited (the “Company”)


 


We have been requested to provide to you our legal
opinion on matters of Guernsey law in relation to the Limited Partnership
acting by the General Partner and, in turn, acting by the Company as its
general partner (together, the “Guernsey
Entities”) established and registered in Guernsey by virtue of a
limited partnership agreement dated 1 May 2006 made between the
General Partner acting by the Company and KKR Private Equity Investors, L.P.
(the “Limited Partnership Agreement”).


 


For the purpose of this opinion we have examined the
following copy documents (the “Documents”):


 


1.1                                a $1,000,000,000 5-year revolving credit
agreement dated on or about the date hereof (the “Credit Agreement”) made between (1) the Limited
Partnership acting by the General Partner in turn acting by the Company as
borrower, (2) the Lenders party thereto, (3) the Administrative
Agent, and (4) Citigroup Global Markets Inc. as joint lead arrangers and
bookrunners; and


 


1.2                                the form of promissory note attached as
an exhibit to the Credit Agreement to be made by (1) the Limited
Partnership acting by the General Partner in turn acting by the Company as
borrower in favour of (2) each Lender which requests the execution and
delivery of such a promissory note in accordance with the Credit Agreement; and


 


1.3                                the form of guarantee and security
agreement attached as an exhibit to the Credit Agreement to be made between
(1) the Limited Partnership acting by the General Partner in turn acting
by the Company as borrower, (2) each party to be specified therein as
guarantor, and (3) the Administrative Agent (the “Guarantee”).


 


Except as expressly referred to in this opinion, we
have not seen or examined, and give no opinion on, any underlying or other
documents referred to in the Documents.


 

















 


We acknowledge that in entering into the Documents to
which you are a party you will be relying upon this opinion.


 


We are lawyers qualified to practise law in and to
advise on the laws of the Island of Guernsey.


 


2.                                      In addition, we have examined:


 


2.1                                the public records of the Company on file
and available for inspection at the Greffe in Guernsey on [ ] 2007 (the “Public Records”);


 


2.2                                a certified true copy of the Certificate
of Registration and Memorandum and Articles of Association of the Company;


 


2.3                                a certificate of a director of the
Company (the “Director’s Certificate”)
relating to certain matters, together with a certified true copy of the written
resolutions of the directors of the Company (the “Directors’ Resolutions”) referred to therein relating to the
Documents, a copy of which is attached;


 


2.4                                a search of the computerised records of
matters raised in the Royal Court available for inspection at the Greffe in
Guernsey on [ ] 2007 (the “Royal Court
records”);


 


2.5                                a copy of the Limited Partnership
Agreement and of the limited partnership agreement establishing the General
Partner dated 1 May 2006 (together with the Limited Partnership
Agreement, the “LPAs”);


 


2.6                                a certified true copy of the Certificates
of Registration relating to the Limited Partnership and the General Partner
issued by H.M. Greffier dated 18 April 2006;


 


2.7                                a copy of the Guernsey Financial Services
Commission’s formal consents pursuant to the Control of Borrowing (Bailiwick of
Guernsey) Ordinances 1959 (as amended) dated 13 April 2006
issued in respect of the Limited Partnership and the General Partner (the “Consents”); and


 


2.8                                a search of the register of limited
partnerships available for public inspection at the Greffe in Guernsey on [ ]
2007 (the “Register”),


 


(together the “ancillary documents”).


 


3.                                      Assumptions


 


3.1                                For the purposes of giving this opinion,
we have with your permission assumed (and relied upon these assumptions):


 


3.1.1                       that all parties (other than the Guernsey
Entities) have the capacity, power and authority to enter into the Documents to
which they are a party and that such parties have duly authorised, executed and
delivered those documents and that those documents have been dated;


 


3.1.2                       the genuineness and authenticity of all
signatures and seals on all documents, the authenticity of all original
documents and the completeness and conformity to original documents of all
documents produced to us as copies;


 


2

















 


3.1.3                       the continuing accuracy and completeness
of the Director’s Certificate, and that the Director’s Resolutions were duly
adopted, have not been revoked or varied and remain in full force and effect as
confirmed by the Director’s Certificate, and the continuing accuracy and
completeness of all statements as to matters of fact contained in the Documents
and the ancillary documents, as at the date hereof;


 


3.1.4                       that where we have examined drafts, the
Documents as executed do not differ in any material respect from the drafts
which we have examined and that the Documents to which the Limited Partnership
is a party are executed in the manner prescribed by the relevant resolution of
the directors of the Company set out in the Director’s Resolutions;


 


3.1.5                       that each of the Documents to which the
Limited Partnership is a party when executed and delivered by Company as
general partner of the General Partner in accordance with the resolutions set
out in the Director’s Resolutions and by the other parties thereto will
constitute the legal, valid and binding obligation of the Limited Partnership
and the other parties thereto, enforceable in accordance with its terms under
the laws of the State of New York by which law the said Documents are expressed
to be governed;


 


3.1.6                       that there is no provision of the law or
regulation of any jurisdiction other than Guernsey which would have any adverse
implication in relation to the opinions expressed hereunder;


 


3.1.7                       that the choice of the laws of the State
of New York to govern each of the Documents is bona fide (for example not made
with any intention of avoiding provisions of the law with which the transaction
under each of the said Documents has the closest and most real connection) and
legal and there is no reason for avoiding that choice of law on grounds of
public policy;


 


3.1.8                       that the information and documents
disclosed by our searches of the Public Records, the Royal Court records and
the Register in Guernsey referred to in paragraphs 2.1, 2.4 and 2.8
above are accurate as at the date hereof and there is no information or
document which had been delivered for registration, or which is required by the
laws of Guernsey to be delivered for registration, which was not included in
the Public Records, the Royal Court records or the Register;


 


3.1.9                       that where incomplete documents or
signature pages only have been supplied to us for the purposes of issuing
this opinion, the original corresponds in all material respects with the last
draft of the complete document supplied to us;


 


3.1.10                 that in respect of the transaction
contemplated by, referred to in, provided for or effected by, the Documents
each of the parties thereto entered into the same in good faith for the purpose
of carrying on its business on arm’s length commercial terms;


 


3.1.11                 that each of the parties to the Documents
(other than the Guernsey Entities) is duly incorporated and organised, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and of the jurisdiction of its principal place of business;


 


3

















 


3.1.12                 the due compliance with all matters
(including, without limitation, the obtaining of all necessary consents, licences,
approvals and filings) under any law other than that of Guernsey;


 


3.1.13                 that in resolving that the Limited
Partnership enter into the Documents to which it is a party and the
transactions documented thereby, the directors of the Company were acting with
a view to the best interests of and for the purposes of the General Partner and
the Limited Partnership;


 


3.1.14                 that the copies of the Certificates of
Registration of the Limited Partnership and the General Partner, the LPAs, and
the Certificate of Registration and Memorandum and Articles of Association of
the Company provided to us are true and complete as of the date of this letter,
as confirmed by the Directors’ Certificate;


 


3.1.15                 that the corporate (if any) directors,
secretary and members of the Company are duly incorporated and organised,
validly existing and in good standing under the law of their place of
incorporation, that they have capacity, power and authority to act in the
manner contemplated and that the authorised signatories of such corporate
directors, secretary and members have been validly appointed;


 


3.1.16                 that any notice(s) required to be
given pursuant to the terms of the Documents are given to the
addressee(s) as set out therein in the form required;


 


3.1.17                 that the LPAs remain in full force and
effect and have not been rescinded, revoked or amended in any way including by
way of addition of any additional limited partners thereto;


 


3.1.18                 that the Consents remain in full force
and effect and have not been rescinded, revoked or amended in any way;


 


3.1.19                 that there has been no change to the
constitution of the Guernsey Entities or any other matter which would require
either notification to H.M. Greffier, the Guernsey Financial Services
Commission or an amendment to the Register;


 


3.1.20                 that the declarations filed with H.M.
Greffier pursuant to section 8(2) of the Limited Partnerships
(Guernsey) Law, 1995 (as amended) in relation to the Limited Partnership and
the General Partner represent a true and correct disclosure as at the date
hereof of relevant matters required thereunder;


 


3.1.21                 that the General Partner acts solely as
general partner of the Limited Partnership and is not carrying on, nor holding
itself out as carrying on, any other business or activity including any controlled
investment business (as that term is defined in the Protection of Investors
(Bailiwick of Guernsey) Law, 1987) or any regulated activities (as that term is
defined in the Regulation of Fiduciaries, Administration Businesses and Company
Directors, etc (Bailiwick of Guernsey) Law, 2000) in or from within the
Bailiwick of Guernsey;


 


3.1.22                 that the Company acts solely as general
partner of the General Partner and is not carrying on, nor holding itself out
as carrying on, any other business or activity including any controlled
investment business (as that term is defined in the Protection of Investors
(Bailiwick of Guernsey) Law, 1987) or any regulated activities (as that term is
defined in the Regulation of Fiduciaries, Administration 


 


4

















 


Businesses and Company
Directors, etc (Bailiwick of Guernsey) Law, 2000) in or from within the
Bailiwick of Guernsey; and


 


3.1.23                 that any assets secured under the
Documents are situated and remain outside the Island of Guernsey.


 


3.2                                We have not independently verified the
above assumptions.


 


4.                                      Opinion


 


On the basis of and subject to the foregoing and the
observations and qualifications that follow and to matters not disclosed to us,
we are of the opinion that:


 


4.1                                the Limited Partnership is a duly
organised, validly formed and existing limited partnership with registered
number 602 under and in accordance with the laws of Guernsey;


 


4.2                                the General Partner is a duly organised,
validly formed and existing limited partnership with registered number 601
under and in accordance with the laws of Guernsey;


 


4.3                                the Company is a limited liability
company duly incorporated and validly existing under the laws of Guernsey;


 


4.4                                the General Partner has been duly and
validly appointed as general partner of the Limited Partnership under the
Limited Partnership Agreement and the laws of Guernsey;


 


4.5                                the Company has been duly and validly
appointed as general partner of the General Partner under the General Partner’s
limited partnership agreement and the laws of Guernsey;


 


4.6                                the Limited Partnership acting by the
General Partner in turn acting by the Company has power and capacity to enter
into the Documents to which it is a party and to exercise its rights and
perform its obligations thereunder and all corporate or other acts required
under the laws of Guernsey to authorise the acceptance and due execution by the
Limited Partnership, acting by the General Partner in turn acting by the
Company as its general partner, of the Documents to which it is a party and the
acceptance and performance by it of its obligations thereunder have been duly
performed;


 


4.7                                each of the Documents to which the
Limited Partnership is a party when executed and delivered by the Company as
general partner of the General Partner in accordance with the resolutions set
out in the Director’s Resolutions and by the other parties thereto will
constitute the legal, valid and binding obligation of the Limited Partnership,
enforceable in accordance with its terms;


 


4.8                                it is not necessary in order to ensure
the legality, validity, enforceability or admissibility in evidence (subject to
filings which may be necessary in connection with legal proceedings) of any of
the Documents in Guernsey:-


 


(i)                                    that they be notarised or filed,
registered, recorded or enrolled with any court or governmental authority in
Guernsey; or


 


5

















 


(ii)                                 that any registration, stamp or other
similar fees, duties, or taxes (other than the payment of court fees in the
event of litigation before the Guernsey Courts) be paid on or in relation to
any of the Documents; or


 


(iii)                              that any consents, authorisations or
approvals of any court or governmental authority in Guernsey be obtained by the
Guernsey Entities (other than the Consents) in relation to any of the
Documents;


 


4.9                                the execution and delivery of the
Documents to which the Limited Partnership is a party and the performance of
the Limited Partnership’s obligations thereunder will not contravene:-


 


(i)                                    any applicable provision of the laws of
Guernsey to which the Limited Partnership is subject; or


 


(ii)                                 any provision of the LPAs; or


 


(iii)                              any provision of the Company’s Memorandum
and Articles of Association;


 


4.10                          the choice of the laws of the State of New
York to govern the Documents is valid and binding and will be recognised by the
Courts of Guernsey;


 


4.11                          enforcement of a judgement of the courts
of the State of New York in respect of the Documents may be possible in
Guernsey at common law.  This is achieved
by suing in the Guernsey Courts on the foreign judgment itself.  Guernsey law would be likely to follow New
York common law rules in this context. 
To that extent, a foreign judgment would only be enforced if the foreign
court was itself of competent jurisdiction. 
In deciding that issue, the Guernsey Courts would be likely to apply New
York conflict of law principles and, in an action in personam, would enforce a
foreign judgment in the following circumstances:-


 


4.11.1                 where the defendant is a subject of the
foreign country in which the judgment has been obtained;


 


4.11.2                 where the defendant was resident in the
foreign country when the action began;


 


4.11.3                 where the defendant in the character of
plaintiff has selected the forum in which he is afterwards sued;


 


4.11.4                 where the defendant has voluntarily
appeared; or


 


4.11.5                 where the defendant has contracted to
submit himself to the forum in which the judgment was obtained.


 


A foreign judgment sued upon in the Courts of Guernsey
is likely to be impeachable only on the following limited grounds:


 


4.11.6                 if the foreign court did not have
jurisdiction to give the judgment; or


 


4.11.7                 if there has been fraud on the part of
the party in whose favour the judgment was given; or


 


4.11.8                 if there has been fraud on the part of
the court pronouncing the judgment; or


 


6

















 


4.11.9                 where enforcement would be contrary to
public policy; or


 


4.11.10           where the proceedings in which the
judgment was obtained were contrary to natural justice.


 


4.12                          a search on [    ]
2007 at the Greffe, the Registrar of Companies in Guernsey, revealed
(i) no order or resolution for the winding-up of the Company and
(ii) no notice of appointment of a liquidator, receiver or other such person
given control of the assets of the Company;


 


4.13                          a search of the Royal Court records
available for inspection at the Greffe on [ ] 2007 as referred to in
paragraph 2.4 above has confirmed that no proceedings have been taken
against the Guernsey Entities (including no proceedings to declare the assets
of the Guernsey Entities to be “en désastre”);


 


4.14                          an inspection on [   ]
2007 of the Register revealed that (i) the Partnership Entities remain
registered as limited partnerships in accordance with the laws of Guernsey,
(ii) the General Partner remains the general partner of the Limited
Partnership, and (iii) the Company remains the general partner of the
General Partner;


 


4.15                          no Guernsey Entity is entitled to claim
immunity on the ground of sovereignty or the like from any suit, execution,
attachment or other legal process in Guernsey and the making and performance by
it of its obligations under the Documents to which it is a party constitute
private and commercial acts rather than public and governmental acts;


 


4.16                          subject to the qualification at paragraph
5.18 and to the assumption at paragraph 3.1.23, it is not necessary under the
laws of Guernsey to take any action to perfect any security interest created by
the Guarantee;


 


4.17                          it is not necessary under the laws of
Guernsey:


 


(i)                                    in order to enable the Administrative
Agent or any Lender to enforce its rights under the Documents to which it is
party; or


 


(ii)                                 by reason of the execution of the
Documents to which it is a party or the performance by Administrative Agent or
any Lender of its obligations thereunder


 


that the Administrative Agent or any Lender should be
licensed, qualified or otherwise entitled to carry on business in Guernsey;


 


4.18                          neither the Administrative Agent nor any
Lender will be, nor will be deemed to be, resident, domiciled or carrying on
business in Guernsey by reason only of the execution, performance and/or
enforcement of the Documents to which it is a party;


 


4.19                          none of the Guernsey Entities is required
by Guernsey law to make any deduction or withholding of tax from, or any
payment of tax with respect to, any payments to be made under or pursuant to
the Documents; and


 


4.20                          any claims of the Administrative Agent or
any Lender against the Limited Partnership under the Credit Agreement will rank
at least pari passu with the claims of unsecured and unsubordinated creditors
of the Limited Partnership save those whose claims are preferred by applicable
law.


 


7

















 


5.                                      Qualifications


 


This opinion is subject to the following
qualifications:-


 


5.1                                the term “enforceable” as used in
paragraph 4 of this opinion means that the obligations assumed by the
relevant party under the relevant Document are of a type which the Guernsey
Courts customarily enforce.  This opinion
is not to be taken to imply that any obligation would necessarily be capable of
enforcement or be enforced in all circumstances in accordance with its
terms.  In particular, but without
limitation:


 


(a)                                 enforcement may be limited by bankruptcy,
désastre, saisie, insolvency, liquidation, dissolution, re-organisation and
other laws of general application relating to, or affecting the rights of,
creditors;


 


(b)                                the Courts of Guernsey do not generally
recognize equitable remedies, for example, specific performance is not
available in Guernsey and other equitable remedies are not necessarily
available or where available are discretionary and may not be available where
damages are considered to be an adequate remedy;


 


(c)                                 claims may be or become barred under the
laws relating to the prescription and limitation of actions or may become
subject to the general doctrine of estoppel or waiver in relation to
representations, acts or omissions of any relevant party or may become subject
to defences of set-off or counterclaim;


 


(d)                                the Courts of Guernsey will not enforce
provisions of the Documents to the extent that the same may be illegal or
contrary to public policy in Guernsey or if obligations are to be performed in
a jurisdiction outside Guernsey to the extent that such performance would be
illegal or invalid, or contrary to the exchange control regulations under the
laws of, or contrary to public policy, in that jurisdiction;


 


(e)                                 the enforcement of the obligations of the
parties to the Documents may be limited by the provisions of Guernsey law
applicable to agreements or contracts held to have been frustrated by events
happening after the relevant agreement or contract was entered into;


 


(f)                                   enforcement of obligations may be
invalidated by reason of fraud, duress or misrepresentation;


 


(g)                                enforcement may be limited to the extent
that matters which it has been expressly assumed herein will be done have not
been done; and


 


(h)                                the effectiveness of any provision
exculpating any party from a liability or duty otherwise owed may be limited by
law.


 


5.2                                a Court in Guernsey may decline to accept
jurisdiction in an action where it determines that there is another more
appropriate forum in another jurisdiction or that a court of competent
jurisdiction has already made a determination of the relevant matter or where
there is litigation pending in respect thereof in another jurisdiction or it
may stay proceedings if concurrent proceedings are instituted elsewhere;


 


5.3                                information available in public
registries in Guernsey is limited and in particular there is no publicly
available record of charges or other security interests over the shares,
limited 


 


8

















 


partnership interests or assets of Guernsey companies
or limited partnerships (other than in respect of real property situated in
Guernsey and Guernsey registered ships);


 


5.4                                the question of whether or not any
provision of the Documents which may be invalid on account of illegality or
otherwise may be severed from the other provisions thereof would be determined
by a Court in Guernsey in its discretion;


 


5.5                                where any party to any of the Documents
is vested with a discretion or may determine a matter in its opinion, the laws
of Guernsey may require that such discretion is exercised reasonably or that
such opinion is based on reasonable grounds;


 


5.6                                we offer no opinion as to the title or
interest of any Guernsey Entity to or in, or the existence of, any property or
assets the subject of the Documents;


 


5.7                                we offer no opinion as to whether the
Limited Partnership’s execution of, or entering into the agreements constituted
by, the Documents, or the performance by the Limited Partnership of its
obligations under the Documents, will result in any breach of or otherwise infringe
any other agreement, deed or document (other than the Company’s Memorandum and
Articles of Association and the LPAs) entered into by or binding on the Limited
Partnership;


 


5.8                                we express no opinion as to any other law
other than the laws of the Island of Guernsey in force at and as interpreted at
the date of this opinion.  In particular
we offer no opinion as to whether the Documents are enforceable in any
jurisdiction outside Guernsey;


 


5.9                                we do not give any opinion on the
commerciality of any transaction contemplated or entered into by the Limited
Partnership under or pursuant to the Documents. 
If in resolving to enter into the transaction the directors of the
Company were not acting with a view to the best interests of the Company, they
would be acting in breach of their duties as directors of the Company under the
laws of Guernsey;


 


5.10                          where a person incorporated, resident or
domiciled in Guernsey gives security governed by foreign law over property
situated outside the Island, then that person is deemed to have had capacity to
give it under the laws of Guernsey.  For
the purposes of this paragraph, “property” means all property, whether tangible
or intangible, vested, contingent or future;


 


5.11                          any provision of the Documents purporting
to provide for certain payments to be made in the event of a breach of any term
of the Documents would not be enforceable to the extent that a Court in
Guernsey was to construe it to be a penalty which was excessive.  For example, provisions for default interest
to be paid on overdue amounts may amount to such an excessive penalty under the
laws of Guernsey and such interest may therefore not be recoverable;


 


5.12                          we offer no opinion on whether or not any
transaction under the Documents constitutes a transaction at an undervalue or a
preference under the laws of Guernsey;


 


5.13                          any provisions in the Documents to the
effect that calculations and/or certifications and/or determinations will be
conclusive and binding will not be effective if such calculations and/or
certifications and/or determinations are fraudulent or erroneous on their face
and will not necessarily prevent a judicial enquiry into the merits of any
claim by the relevant party relative to any such calculation, certification or
determination or 


 


9

















 


review by the Royal Court of Guernsey of the grounds
on which such calculation, certification or determination is made or given;


 


5.14                          a court in Guernsey may refuse to
(i) give effect to any provision of an agreement it considers usurious or
(ii) allow unjust enrichment;


 


5.15                          the searches of the Public Records
referred to in paragraph 2.1 and of the Register referred to at
paragraph 2.8 above are not conclusively capable of revealing whether or
not:


 


(i)                                    a winding up or dissolution order has
been made or a resolution passed for the winding up or dissolution of a
Guernsey Entity; or


 


(ii)                                 an order has been made or a resolution
passed appointing a liquidator in respect of any Guernsey Entity,


 


as notice of these matters might not be filed with the
Greffe immediately and, when filed, might not be entered on the public record
of the relevant Guernsey Entity immediately;


 


5.16                          there is no official register of pending
actions in Guernsey available for public inspection and no formal procedure for
determining whether any proceedings have been commenced against any Guernsey
Entity including as to whether proceedings have commenced to declare the
property of any Guernsey Entity “en désastre”. 
The enquiry of the Royal Court records referred to in paragraph 2.4
above is an informal enquiry only and cannot be relied upon exclusively;


 


5.17                          save as expressly provided herein, we
offer no opinion in relation to any representations or warranty made or given
by any Guernsey Entity in the Documents;


 


5.18                          in respect of the Guarantee:


 


5.18.1                 the Guarantee is not a security agreement
for the purposes of The Security Interests (Guernsey) Law, 1993 (the “Security Interests Law”) and Guernsey law
prohibits the giving of security over tangible moveable property situated in
Guernsey other than by pledge and requires compliance with the Security
Interests Law in order that security is obtained over intangible moveable
property situate in Guernsey.  Thus
purported creation of security by fixed charge or otherwise under the Guarantee
will not be valid and enforceable in respect of real property or tangible
moveable property in Guernsey and is unlikely to be valid or enforceable in
respect of other Guernsey situs assets. 
The question of situs of assets will be determined by the Courts of
Guernsey in accordance with principles of private international law which
principles are broadly similar to those applied by the English Courts;


 


5.18.2                 the Royal Court of Guernsey is unlikely
to recognise powers of any receiver or administrator appointed under the
Guarantee claimed in respect of Guernsey situs assets; and


 


5.18.3                 for the avoidance of doubt, where a
person incorporated, resident or domiciled in Guernsey gives security governed
by foreign law over property situated outside the Island of Guernsey, then that
person is deemed to have had capacity to give it under the laws of
Guernsey.  For the purposes of this
paragraph, “property” 


 


10

















 


means all property,
whether tangible or intangible, vested, contingent or future; and


 


5.19                          the opinions expressed in
paragraph 4 above in respect of the Company are subject to the doctrine
expressed in the English case of Russell v Northern Bank Development Corp.
Ltd. and others [1992] 1 WLR 588 (which would be persuasive in the
Courts of Guernsey) that a provision in a contract made by a company
restricting the exercise of a statutory power to, for example, alter the
Company’s memorandum and articles of association, or increase its share
capital, is of no effect.


 


6.                                      This opinion shall be governed by and
construed in accordance with the laws of Guernsey and is limited to the matters
expressly stated herein.  This opinion is
confined to and given on the basis of the laws and practice in Guernsey at the
date hereof.  We have made no
investigation and express no opinion in relation to the laws or practice of any
jurisdiction other than Guernsey.  This
opinion is addressed only to you and is solely for the benefit of you and your
professional legal advisers in connection with the Documents and except with
our prior written consent it may not be disclosed to or relied upon by any
other person or used for any other purpose or referred to or made public in any
way save that it may be disclosed to (but not relied on by) any public or
governmental agency or other person, where such disclosure is required by law.


 


 


Yours faithfully


 


 


CAREY OLSEN


 


11














 


EXHIBIT D-2


 


[FORM OF OPINION OF
SPECIAL NEW YORK


COUNSEL TO OBLIGORS]


 


June 11, 2007


 


Citibank, N.A., as
Administrative Agent under the Credit Agreement, as hereinafter defined (the “Agent”)


 


and


 


The other
addressees listed on Schedule I hereto


 


Re:                      5-Year Revolving Credit Agreement dated
as of June 11, 2007, (the “Credit Agreement”) among KKR PEI
Investments, L.P., a Guernsey limited partnership (the “Company”), the
lending institutions from time to time party thereto (the “Lenders”),
the Agent and the other agents and entities party thereto


 


Ladies and Gentlemen:


 


We have acted as special
New York counsel to the Company and the subsidiaries of the Company named on
Schedule II hereto (each, a “Subsidiary Guarantor” and, collectively,
the “Subsidiary Guarantors”; the Company and the Subsidiary Guarantors
being referred to herein collectively as, the “Credit Parties”) in
connection with the preparation, execution and delivery of the following
documents:


 


(i)                                    the Credit Agreement; and


 


(ii)                                 the Guarantee and Security Agreement (the
“Security Document”; the Credit Agreement and the Security Document
being referred to herein collectively as, the “Credit Documents”).


 


Unless otherwise
indicated, capitalized terms used but not defined herein shall have the respective
meanings set forth in the Credit Agreement. 
This opinion is furnished to you pursuant to
Section 4.01(f) of the Credit Agreement.


 


We have examined the
following:


 


(i)                                    the Credit Agreement, signed by each
Credit Party that is a party thereto and by the Agent and certain of the
Lenders and the agents and other entities that are a party thereto;


 


(ii)                                 the Security Document, signed by each
Credit Party that is a party thereto; and


 

















 


(iii)                              unfiled copies of the financing
statements listed on Schedule III hereto (the “Financing Statements”),
naming the Credit Parties indicated on such Schedule III as debtors and the
Agent as secured party, which we understand will be filed in the Office of the
Recorder of Deeds in the District of Columbia (the “Filing Office”).


 


In addition, we have
examined, and have relied as to matters of fact upon, the documents delivered
to you at the closing, and upon originals, or duplicates or certified or
conformed copies, of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of public officials
and of officers and representatives of the Credit Parties, and have made such
other investigations, as we have deemed relevant and necessary in connection
with the opinions hereinafter set forth. 
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as duplicates or certified or conformed copies and
the authenticity of the originals of such latter documents.  In addition, we have relied as to certain
matters of fact upon the representations made in the Credit Documents.


 


In addition, we have assumed
that (1) the Credit Parties have rights in the Collateral existing on the
date hereof and will have rights in property which becomes Collateral after the
date hereof and (2) “value” (as defined in Section 1-201(44) of the
Uniform Commercial Code as in effect on the date hereof in the State of New
York (the “New York UCC”)) has been given by the Secured Parties to the
Credit Parties for the security interests and other rights in the Collateral.


 


Based upon and subject to
the foregoing, and subject to the qualifications and limitations set forth
herein, we are of the opinion that:


 


1.             Assuming that each of the Credit Parties (a) is
validly existing and in good standing under the laws of the jurisdiction in
which it is organized, (b) has the power and authority to execute and
deliver the Credit Documents to which it is a Party and to perform its
obligations thereunder and (c) has duly authorized the Credit Documents to
which it is a party, each of the Credit Parties has duly executed and delivered
the Credit Documents to which it is a party insofar as the laws of the State of
New York are concerned.


 


2.             The execution and delivery by any Credit Party of the
Credit Documents to which it is a party, the performance of its payment
obligations thereunder and granting of the security interests to be granted by
it pursuant to the Security Document to which it is a party, will not result
in, assuming that proceeds of borrowings will be used in accordance with the
terms of the Credit Agreement, any violation of any New York or Federal statute
or any rule or regulation issued pursuant to any New York or Federal
statute or any order known to us issued by any court or governmental agency or
body.


 


3.             No consent, approval, authorization, order, filing,
registration or qualification of or with any Federal or New York governmental
agency or body is required for the execution and delivery by any Credit Party
of the Credit Documents to which it is a party, the borrowings by the Company
in accordance with the terms of the Credit Documents, the performance by the
Credit Parties of their respective payment obligations under the Credit
Documents or the granting of any security interests under the


 

















 


Security Document, except
filings required for the perfection of security interests granted pursuant to
the Security Document.


 


4.             Assuming that each of the Credit Documents is a valid
and legally binding obligation of each of the parties thereto (other than the
Credit Parties) and assuming that (a) each of the Credit Parties is validly
existing and in good standing under the laws of the jurisdiction in which it is
organized and has duly authorized, executed and delivered the Credit Documents
to which it is a party in accordance with its organizational documents,
(b) execution, delivery and performance by each of the Credit Parties of
the Credit Documents to which it is a party do not violate the laws of the
jurisdiction in which it is organized or any other applicable laws (excepting
the law of the State of New York and the Federal laws of the United States) and
(c) execution, delivery and performance by each Credit Party of the Credit
Documents to which it is a party do not constitute a breach or violation of any
agreement or instrument which is binding upon any Credit Party, each Credit
Document constitutes the valid and legally binding obligation of each Credit
Party that is a party thereto, enforceable against such Credit Party in
accordance with its terms.


 


5.             To our knowledge having made no independent
investigation there is no action, suit or proceeding now pending before or by
any court, arbitrator or governmental agency, body or official to which any
Credit Party is a party or to which the business, assets or property of any
Credit Party is subject, and no such action, suit or proceeding is threatened
to which any Credit Party would be a party or to which the business, assets or
property of any Credit Party would be subject, that in either case questions
the validity of the Credit Documents.


 


6.             No Credit Party is an “investment company” within the
meaning of, and subject to regulation under, the Investment Company Act of
1940, as amended.


 


7.             Assuming that the Company will comply with the
provisions of the Credit Agreement relating to the use of proceeds and that the
amount of the Loans outstanding at any time will not exceed 50% of the value of
the Collateral at such time, the execution and delivery of the Credit Agreement
by the Company and the making of the Loans to the Company under the Credit
Agreement will not violate Regulation T, U or X of the Board of Governors of
the Federal Reserve System.


 


8.             The Security Document creates in favor of the Agent for
the benefit of the Secured Parties a security interest in the Collateral
described therein in which a security interest may be created under
Article 9 of the New York UCC (the “Security Agreement Article 9
Collateral”).


 


9.             Upon the filing in the Filing Office of the Financing
Statements referred to on Schedule III the Agent will have a perfected security
interest for the benefit of the Lenders in that portion of the Security
Agreement Article 9 Collateral in which a security interest is perfected
by filing a financing statement in the Filing Office.


 


Although we express no
opinion as to the law of the District of Columbia, we have reviewed
Article 9 of the Uniform Commercial Code in effect in the District of
Columbia as set forth in the Commerce Clearing House, Inc. Secured
Transactions Guide as supplemented 


 

















 


through May 2, 2007 (the “D.C. UCC”) and,
based solely on such review, we advise you that (a) the Financing
Statements to be filed in the Filing Office are in appropriate form for filing
in the Filing Office and (b) upon the filing of the Financing Statements
in the Filing Office, the Agent will have a perfected security interest for the
benefit of the Secured Parties in that portion of the Article 9 Collateral
in which a security interest can be perfected by filing a financing statement
in the Filing Office.


 


Our opinions in
paragraphs 4 and 8 above are subject to (i) the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law),
(iii) an implied covenant of good faith and fair dealing and (iv) the
effects of the possible judicial application of foreign laws or foreign
governmental or judicial action affecting creditors’ rights.  Our opinion in paragraph 4 above also is
subject to the qualification that certain provisions of the Security Document
may not be enforceable in whole or in part, although the inclusion of such
provisions does not render the Security Document invalid, and the Security
Document and the law of the State of New York contain adequate remedial
provisions for the practical realization of the rights and benefits afforded
thereby.


 


Our opinion in paragraph
8, and our advice in the second preceding paragraph above, are limited to
Article 9 of the New York UCC or the D.C. UCC, as the case may be, and our
opinion in paragraph 9 is limited to Article 9 of the New York UCC, and,
therefore, those opinions and advice paragraphs do not address
(i) collateral of a type not subject to Article 9 of the New York UCC
or the D.C. UCC and (ii) what law governs perfection of the security
interests granted in the collateral covered by this opinion letter.


 


We note that (A) a
New York statute provides that with respect to a foreign currency obligation a
court of the State of New York shall render a judgment or decree in such
foreign currency and such judgment or decree shall be converted into currency
of the United States at the rate of exchange prevailing on the date of entry of
such judgment or decree and (B) with respect to a foreign currency
obligation a United States Federal court in New York may award judgment in
United States dollars, provided that we express no opinion as to the rate of
exchange such court would apply.


 


We express no opinion and
render no advice with respect to:


 


(i)            perfection of any security interest
in (1) any collateral of a type represented by a certificate of title,
(2) any proceeds and (3) any collateral consisting of money or cash
equivalents;


 


(ii)           perfection of any security interest
whose priority is subject to § 9-334 of the applicable Uniform Commercial Code;


 


(iii)          the priority of any security interest;


 


(iv)          the effect of Section 552 of the
Bankruptcy Code (11 U.S.C. 552) (relating to property acquired by a pledgor
after the commencement of a case under the United States Bankruptcy Code with
respect to such pledgor) and Section 506(c) of the Bankruptcy Code
(11 U.S.C. 506(c) (relating to certain costs and expenses of a trustee in
preserving or disposing of collateral);


 

















 


(v)           the effect of any provision of the
Credit Documents which is intended to establish any standard other than a
standard set forth in the New York UCC as the measure of the performance by any
party thereto of such party’s obligations of good faith, diligence,
reasonableness or care or of the fulfillment of the duties imposed on any
secured party with respect to the maintenance, disposition or redemption of
collateral, accounting for surplus proceeds of collateral or accepting
collateral in discharge of liabilities;


 


(vi)          the effect of any provision of the
Credit Documents which is intended to permit modification thereof only by means
of an agreement in writing signed by the parties thereto;


 


(vii)         the effect of any provision of the
Credit Documents insofar as it provides that any Person purchasing a
participation from a Lender or other Person may exercise set-off or similar
rights with respect to such participation or that any Lender or other Person
may exercise set-off or similar rights other than in accordance with applicable
law;


 


(viii)        the effect of any provision of the
Credit Documents imposing penalties or forfeitures;


 


(ix)           the enforceability of any provision
of any of the Credit Documents to the extent that such provision constitutes a
waiver of illegality as a defense to performance of contract obligations; and


 


(x)            the effect of any provision of the
Credit Documents relating to indemnification or exculpation in connection with
violations of any securities laws or relating to indemnification, contribution
or exculpation in connection with willful, reckless or criminal acts or gross
negligence of the indemnified or exculpated Person or the Person receiving
contribution.


 


In connection with the provisions of the Credit
Documents whereby the parties submit to the jurisdiction of the courts of the
United States of America located in the State of New York, we note the
limitations of 28 U.S.C. §§ 1331 and 1332 on subject matter jurisdiction of the
Federal courts.  In connection with the
provisions of the Credit Documents which relate to forum selection (including,
without limitation, any waiver of any objection to venue or any objection that
a court is an inconvenient forum), we note that under NYCPLR § 510 a New York
State court may have discretion to transfer the place of trial, and under 28
U.S.C. § 1404(a) a United States District Court has discretion to transfer
an action from one Federal court to another.


 


With respect to matters of Cayman Islands, Guernsey
and Luxembourg law, we understand that you are relying on the opinions of Maples
and Calder, Carey Olson and Linklaters LLP, respectively.


 


We do not express any opinion herein concerning any
law other than the law of the State of New York and the federal law of the
United States.


 


This opinion letter is rendered to you in connection
with the above described transactions. 
This opinion letter may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent.


 

















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIMPSON THACHER & BARTLETT LLP

  



 

















 


SCHEDULE
I


 


ADDRESSEES 


 


ENTITY NAME


 


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


 

















 


SCHEDULE
II


 


SUBSIDIARY GUARANTORS


 




	
  Entity Name

  	
   

  	
  Jurisdiction
  of Organization

  
	
   

  	
   

  	
   

  
	
  KKR PEI Alternative Investments Limited

  	
   

  	
  Cayman Islands

  
	
   

  	
   

  	
   

  
	
  KKR PEI Japan Investment I, Ltd.

  	
   

  	
  Cayman Islands

  
	
   

  	
   

  	
   

  
	
  KKR Sprint (KPE) Limited

  	
   

  	
  Cayman Islands

  
	
   

  	
   

  	
   

  
	
  SEVRES IV, S.a r.l.

  	
   

  	
  Luxembourg

  






 

















 


SCHEDULE
III


 


FINANCING STATEMENTS


 


Financing statements on form UCC-1, naming the Person
listed below as debtor and the Administrative Agent as secured party for the
benefit of the Secured Parties, to be filed in the Filing Office:


 




	
  Debtor

  
	
   

  
	
  KKR PEI Alternative Investments Limited

  
	
   

  
	
  KKR PEI Investments, L.P.

  
	
   

  
	
  KKR PEI Japan Investment I, Ltd.

  
	
   

  
	
  KKR Sprint (KPE) Limited

  
	
   

  
	
  SEVRES IV, S.a r.l.

  






 






 










 


EXHIBIT D-3


 


[FORM OF OPINION OF SPECIAL NEW YORK


COUNSEL TO THE ADMINISTRATIVE AGENT]


 


[          
    ], 2007


 


To the
Lenders that are parties to the

Credit Agreement referred to below

and Citibank, N.A., as Administrative

Agent for such Lenders (the “Administrative Agent”)


 


Ladies and Gentlemen:


 


We have acted as special
New York counsel to the Administrative Agent in connection with the Revolving
Credit Agreement dated as of June 11, 2007 (the “Credit Agreement”) among
KKR PEI Investments, L.P., a Guernsey limited partnership (the “Borrower”)
(acting through its general partner, KKR PEI Associates, L.P., a Guernsey
limited partnership acting through its general partner, KKR PEI GP Limited),
the financial institutions referred to as “Lenders” in the Credit Agreement
(the “Lenders”) and the Administrative Agent, and the Guarantee and
Security Agreement dated as of June 11, 2007 (the “Guarantee and
Security Agreement”) between the Borrower, the Guarantors and the
Administrative Agent.  Terms defined in
the Credit Agreement have the same respective defined meanings when used
herein.  The term “Collateral” has the
meaning ascribed thereto in the Guarantee and Security Agreement.


 


In rendering the opinions
expressed below, we have examined:


 


(a)           an executed copy of the Credit Agreement; and


 


(b)           an executed copy of the Guarantee and Security Agreement (together with the Credit
Agreement, the “Credit Documents”); and


 


(c)           the financing statements in the form of Annex 1 hereto
(the “Financing Statements”).


 


In our examination, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies.  When relevant facts were not independently
established, we have relied upon representations made in or pursuant to the
Credit Documents.  We have also assumed
that the Credit Documents have been duly authorized, executed and delivered by,
and (except, to the extent set forth below, as to the Borrower and


 





















 


Guarantors) constitute
legal, valid, binding and enforceable obligations of, all of the parties
thereto, that all signatories thereto have been duly authorized and that all
such parties are duly organized and validly existing and have the power and
authority (corporate or other) to execute, deliver and perform the same, and that all authorizations, approvals
or consents of (including without limitation all foreign exchange control
approvals), and all filings or registrations with, any governmental or
regulatory authority or agency of Guernsey (including the central bank of
Guernsey) required for the making and performance by the Borrower and the
Guarantors of the Credit Documents have been obtained or made and are in effect.


 


Based upon and subject to
the foregoing and subject also to the comments and qualifications set forth
below, and having considered such questions of law as we have deemed necessary
as a basis for the opinions expressed below, we are of the opinion that:


 


(1)           Each Credit Document constitutes, and each Note when
duly executed and delivered for value will constitute, a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or other similar
laws relating to or affecting the rights of creditors generally and to the possible judicial application of foreign laws or
governmental action affecting the rights of creditors generally, and
except as the enforceability of the Credit Documents is subject to the
application of general principles of equity (regardless of whether considered
in a proceeding in equity or at law), including without limitation (i) the
possible unavailability of specific performance, injunctive relief or any other
equitable remedy and (ii) concepts of materiality, reasonableness, good
faith and fair dealing.


 


(2)           The Guarantee and Security Agreement is effective to
create, in favor of the Administrative Agent for the benefit of the Secured
Creditors (as defined in the Security Agreement), a valid security interest
under the Uniform Commercial Code as in effect in the State of New York (the “UCC”)
in the Collateral, provided that (a) such security interest will continue
in Collateral after disposition thereof and in any proceeds (as defined in §
9-102(a)(64) of the UCC) only to the extent provided in § 9-315 of the UCC, and
(b) such security interest in any portion of the Collateral in which the
Borrower or any Guarantor acquires rights after the commencement of a case
under the Bankruptcy Code in respect of the Borrower or such Guarantor may be
limited by Section 552 of the Bankruptcy Code.


 


(3)           If the jurisdiction of
organization of an Obligor outside the United States of America constitutes a
filing jurisdiction as hereinafter defined (as to which we express no opinion),
and the place of business of an Obligor (or if it has more than one place of
business its chief executive office) is in such jurisdiction, under §9-301 of
the UCC the local law of Guernsey governs perfection, the effect of perfection
or nonperfection and the priority of the security interest created by such Obligor under the
Guarantee and Security Agreement.  If such jurisdiction does not constitute a
filing jurisdiction as hereinafter defined, (i) each Obligor will be
deemed to be located in the District of Columbia for purposes of Article 9
of the UCC, (ii) under §9-301 of the UCC the local law of the District of
Columbia governs perfection, the effect of perfection or nonperfection and the
priority of the security interest created by the Guarantee and Security
Agreement and (iii) pursuant to §9-501 of the Uniform Commercial Code as
in effect in the District of Columbia, the filing of the Financing
Statements in the Recorder of Deeds of
the District of Columbia will cause such security interest to be perfected.


 


2





















 


As used herein, “filing jurisdiction” means a jurisdiction whose law
generally requires information concerning the existence of a nonpossessory
security interest to be made generally available in a filing, recording or
registration system as a condition or result of the security interest’s taking
priority over the rights of a lien creditor (as defined in §9-102(a)(52) of the
UCC) with respect to the Collateral.


 


The
foregoing opinions are also subject to the following comments and
qualifications:


 


(A)  The
enforceability of provisions in the Credit Documents to the effect that terms
may not be waived or modified except in writing may be limited under certain circumstances.


 


(B)  The
enforceability of Section 9.04(b) of the Credit Agreement may be
limited by laws limiting the enforceability of provisions exculpating or
exempting a party from, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent the action or inaction involves
gross negligence, recklessness, willful misconduct or unlawful conduct.


 


(C)  We
express no opinion as to (i) the effect of the laws of any jurisdiction in
which any Lender is located (other than New York) that limits the
interest, fees or other charges it may impose for the loan or use of money or
other credit, (ii) Section 9.03(b) of
the Credit Agreement, (iii) the
first sentence of Section 9.07(b) of the Credit Agreement, or any
similar provision in any of the other Credit Documents, insofar as such
sentence relates to the subject-matter jurisdiction of the United States
District Court for the Southern District of New York to adjudicate any
controversy related to the Credit Documents, (iv) the waiver of
inconvenient forum set forth in Section 9.07(c) of the Credit
Agreement, or any similar provision in any of the other Credit Documents, with
respect to proceedings in the United States District Court for the Southern
District of New York or (v) Section 9.16
of the Credit Agreement.


 


(D)  We express no opinion as to Section 9.07(e) of the
Credit Agreement or Section 7.07(e) of the Guarantee and Security
Agreement to the extent it relates to immunity acquired after the date of
execution and delivery of each such agreement.


 


(E)  We
wish to point out that the obligations of the Borrower and the Guarantors, and
the rights and remedies of the Secured Parties, under the Guarantee and
Security Agreement may be subject to possible limitations upon the exercise of
remedial or procedural provisions contained therein, provided that such
limitations do not, in our opinion (but subject to the other comments and qualifications
set forth in this opinion letter), make the remedies and procedures that will
be afforded to the Administrative Agent inadequate for the practical
realization of the substantive benefits purported to be provided by the
Guarantee and Security Agreement.


 


(F)  We
express no opinion as to the existence of, or the right, title or interest of
the Borrower or any Guarantor in, to or under, any of the Collateral, and except as expressly
provided in paragraphs (2) or (3) above, we express no opinion as to
the creation, perfection or priority of any security interest in any of the
Collateral.


 


3





















 


(G)  With
respect to our opinion in paragraph (3) above, we have assumed that the
Financing Statement will be filed in the appropriate filing office no later
than 10 days after the initial extension of credit under the Credit Agreement.


 


(H)  We
wish to point out that the acquisition by the Borrower and/or the Guarantors
after the initial extension of credit under the Credit Agreement of an interest
in property that becomes subject to the lien of the Guarantee and Security
Agreement may constitute a voidable preference under Section 547 of the
Bankruptcy Code.


 


(I)  We
express no opinion with respect to the applicability or effect on the
obligations or the Guarantors under the Guarantee and Security Agreement, or
the grant of security interests thereunder, of Section 548 of the
Bankruptcy Code, Article 10 of the New York Debtor and Creditor Law or any
other law relating to fraudulent conveyances or transfers.


 


(J)  With
respect to our opinions in paragraphs (2) and (3) above, we express
no opinion as to the creation or perfection of any security interest in any
portion of the Collateral to the extent that, pursuant to §9-109(c) or (d) of
the UCC, Article 9 of the UCC does not apply thereto.


 


(K)  We
express no opinion as to the perfection of any security interest in any of the
Collateral consisting of fixtures, timber to be cut, commercial tort claims or
consumer goods, or in Collateral covered by a certificate of title.  We express no opinion as to the creation or
perfection of any security interest in commingled goods within the meaning of
UCC §9-336(a).


 


(L)  We
assume that each endorsement, instruction and entitlement order, as such terms
are defined in §8-102(a) of the UCC, is effective in accordance with
§8-107 of the UCC; we express no opinion as to the effect of any rule adopted
by any clearing corporation, as defined in §8-102(a) of the UCC, governing
rights and obligations among such clearing corporation and its participants;
our opinion with respect to any security entitlement is subject to Part 5
of Article 8 of the UCC; and we express no opinion as to the creation,
perfection or priority of any security interest in any obligations of the
Government of the United States or any agency or instrumentality thereof except
for obligations subject to the Revised Book-Entry Rules as defined in Annex 2 hereto.


 


(M)  Our
opinion in paragraph (3) above with respect to perfection of a security
interest under the laws of the District
of Columbia is based solely upon a review of the relevant statutory text
of Article 9 of the UCC as displayed on LEXIS/NEXIS on
                                
and on our review of D.C. Mun.
Regs., tit. 9, § 513.2, without regard to the decisional law of the District of Columbia.


 


The foregoing opinions
are limited to matters involving the Federal laws of the United States and the
law of the State of New York, and, to the extent provided in clause (M) above,
the laws of the District of Columbia, and we do not express any opinion as to
the law of any other jurisdiction. 
Without limiting the foregoing, we do not hold ourselves out as experts 


 


4





















 


on, or purport to advise on, the laws of Guernsey.  In addition, we express no opinion as to any
matter relating to the Investment Company Act of 1940, as amended.


 


This
opinion letter is provided to you by us as special New York counsel to the
Administrative Agent pursuant to Section 4.01(f) of the Credit
Agreement and may not be relied upon by any other person or for any purpose
other than in connection with the transactions contemplated by the Credit
Documents without our prior written consent in each instance.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  [                         ]

  



 


WFC/RMG


 


5





















 


Annex 1


 


Form of
Financing Statement


 


6





















 


Annex 2


 


Revised Book-Entry
Rules


 


The term “Revised
Book-Entry Rules” means 31 C.F.R. §357 (Treasury bills, notes and bonds; 12
C.F.R. §615 (book-entry securities of the Farm Credit Administration); 12
C.F.R. §§910 and 912 (book-entry securities of the Federal Home Loan Bank); 24
C.F.R. §81 (book-entry securities of the Federal National Mortgage Association
and the Federal Home Loan Mortgage Corporation); 12 C.F.R. §1511 (book-entry
securities of the Resolution Funding Corporation; and 31 C.F.R. §354
(book-entry securities of the Student Loan Marketing Association).


 


7





















 


EXHIBIT E


 


[FORM OF NEW
LENDER ASSUMPTION AGREEMENT]


 


[DATE]


 


Citibank, N.A.

as Administrative Agent under

the within mentioned

Credit Agreement


[Two Penn’s Way


Suite 200


New Castle, DE
19720]


 


Ladies and
Gentlemen:


 


Reference is made
herein to the Credit Agreement dated as of June 11, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”;
terms defined therein being used herein as therein defined) among KKR PEI
Investments, L.P., a Guernsey limited partnership (the “Borrower”)
(acting through its general partner, KKR PEI Associates, L.P., a Guernsey
limited partnership acting through its general partner, KKR PEI GP Limited),
the Lenders named therein and Citibank, N.A., as Administrative Agent (the “Administrative
Agent”).


 


The Borrower and
                              
(the “Assuming Lender”) agree as follows:


 


1.  The Assuming
Lender proposes to become an Assuming Lender pursuant to Section 2.05(c) of
the Credit Agreement and, in that connection, hereby agrees with the
Administrative Agent and the Borrower that it shall become a Lender for all
purposes of the Credit Agreement on the applicable Commitment Increase Date
with a Commitment in the amount of $                    .


 


2.  The
undersigned Assuming Lender (a) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Sections 5.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assumption Agreement; (b) agrees that it will, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (c) appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (d) agrees that it will perform in
accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; (e) confirms
that it is an Eligible Assignee; and (f) specifies as its Applicable
Lending Offices the offices set forth below its name on the signature page hereof.


 





















 


3.  Following
the execution of this Assumption Agreement, it will be delivered to the
Administrative Agent for acceptance and recording by the Administrative
Agent.  The effective date for this
Assumption Agreement (the “Effective Date”) shall be the applicable
Commitment Increase Date.


 


4.  Upon
satisfaction of the applicable conditions set forth in Section 2.05(c) and
upon such acceptance and recording by the Administrative Agent, as of the
effective date, the Assuming Lender shall be a party to the Credit Agreement
and have all of the rights and obligations of a Lender thereunder.


 


5.  This
Assumption Agreement shall be governed by, and construed in accordance with,
the law of the State of New York.


 


6.  This Assumption
Agreement 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 all of which taken together shall constitute
one and the same agreement.  Delivery of
an executed counterpart of this Assumption Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Assumption
Agreement.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  KKR PEI INVESTMENTS,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Its general partner KKR
  PEI

  
	
   

  	
   

  	
  Associates, L.P.,

  
	
   

  	
   

  	
  acting through its
  general partner

  
	
   

  	
   

  	
  KKR PEI GP Limited

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2





















 


	
   

  	
   

  	
  [NAME OF ASSUMING
  LENDER]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:
                      ,            

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Address]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Applicable Lending
  Office(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Address(es)]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted this
       day of

  	
   

  	
   

  
	
                           ,
          :

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CITIBANK, N.A.,

  	
   

  	
   

  
	
  As
  Administrative Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


3


















 


EXHIBIT F


 


[FORM OF ASSIGNMENT AND ASSUMPTION]


 


ASSIGNMENT AND ASSUMPTION


 


This Assignment and Assumption (the “Assignment and Assumption”) is
dated as of the Assignment Date set forth below and is entered into by and
between [Insert name of Assignor] (the “Assignor”) and
[Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee.  The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby
agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.


 


For an agreed consideration,
the Assignor hereby irrevocably sells and assigns to the Assignee, and the
Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement,
as of the Assignment Date inserted by the Administrative Agent as contemplated
below (i) all of the Assignor’s rights and obligations in its capacity as
a Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
the Assignor under the respective facilities identified below (including
without limitation any guarantees included in such facilities) and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations
sold and assigned pursuant to clauses (i) and (ii) above being referred
to herein collectively as, the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [and
  is an Affiliate/Approved Fund of [identify Lender](1)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative
  Agent:

  	
   

  	
  Citibank, N.A.,
  as the administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit
  Agreement:

  	
   

  	
  $1,000,000,000
  Credit Agreement dated as of June 11, 2007 among KKR PEI Investments,
  L.P., the Lenders party thereto and Citibank, N.A., as Administrative
  Agent

  



 






(1)           Select as applicable.


 

















 


6.             Assigned Interest:


 


	
  Aggregate Amount

  of Commitment for

  all Lenders

  	
   

  	
  Amount of

  Commitment

  Assigned

  	
   

  	
  Percentage Assigned

  of Commitment

  	
   

  	
  Outstanding

  Loans

  	
   

  	
  CUSIP Number

  	
   

  
	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  	
   

  	
   

  



 


	
  [7.

  	
  Trade
  Date:

  	
   

  	
  ](2)

  



 


Assignment
Date:  
                          
      , 20      
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE DATE OF
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set forth in this
Assignment and Assumption are hereby agreed to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
     Name:

  
	
   

  	
     Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
     Name:

  
	
   

  	
     Title:

  



 


[Consented
to and](3) Accepted:


 


CITIBANK,
N.A., as


Administrative Agent


 


 


	
  By

  	
   

  	
   

  
	
     Name:

  	
   

  
	
     Title:

  	
   

  



 


[Consented to:](4)


 


KKR PEI INVESTMENTS, L.P.


 


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


acting through its general partner


KKR PEI GP Limited


 






(2)           To be completed if the
Assignor and the Assignee intend that the minimum assignment amount is to be
determined as of the Trade Date.


 


(3)           To be added only if the consent of the
Administrative Agent is required by the terms of the Revolving Credit
Agreement.


 


(4)           To be added only if the consent of KKR PEI
Investments, L.P. is required by the terms of the Revolving Credit Agreement.


 


2

















 


	
  By

  	
   

  	
   

  
	
     Name:

  
	
     Title:

  



 


3

















 


ANNEX 1


 


$1,000,000,000 CREDIT AGREEMENT 

DATED AS OF JUNE 11, 2007 AMONG 

KKR PEI INVESTMENTS, L.P., THE LENDERS PARTY THERETO

AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT


 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ASSUMPTION


 


1.  Representations and
Warranties.


 


1.1   Assignor.  The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.


 


1.2.  Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all requirements of an Eligible
Assignee under the Credit Agreement (subject to receipt of such consents as may
be required under the Credit Agreement), (iii) from and after the
Assignment Date, it shall be bound by the provisions of the Credit Agreement as
a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.01(b) thereof, as applicable, and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Assumption
and to purchase the Assigned Interest on the basis of which it has made such
analysis and decision independently and without reliance on the Administrative
Agent or any other Lender, and (v) if it is a Foreign Lender, attached to
the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed
by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


2.     Payments.    From and after the Assignment Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to but excluding
the Assignment Date and to the Assignee for amounts which have accrued from and
after the Assignment Date.(6)


 






(6)           The Administrative Agent
should consider whether this method conforms to its systems.  In some circumstances, the following alternative
language may be appropriate:  “From and
after the Assignment Date, the Administrative Agent shall make all payments in
respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignee whether such amounts have accrued
prior to, on or after the Assignment Date. 
The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Assignment Date
or with respect to the making of this assignment directly between themselves.”


 

















 


3.  General Provisions.  This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.  This
Assignment and Assumption may be executed in any number of counterparts, which
together shall constitute one instrument. 
Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be
governed by, and construed in accordance with, the law of the State of New
York.


 


2

















 


EXHIBIT G


 


[Form of
Borrowing Base Certificate]


 


 


	
   

  	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  As of:

  	
   

  	
   

  



 


 


To:          Citibank, N.A., as Administrative Agent


 


Ladies and
Gentlemen:


 


Reference is made to the Credit Agreement
dated as of June 11, 2007 (as amended, supplemented, or otherwise modified
from time to time, the “Credit Agreement”; terms defined therein being
used herein as therein defined), among KKR PEI Investments, L.P. (the “Borrower”)
(acting through its
general partner, KKR PEI Associates, L.P., a Guernsey limited partnership
acting through its general partner, KKR PEI GP Limited), the Lenders from time to time party thereto and Citibank,
N.A., as Administrative Agent (the “Administrative Agent”).


 


The undersigned,
                                                        ,
a Financial Officer of the Borrower hereby certifies that (a) the
information set forth in the attachment hereto is true and correct as of the
last day of the period specified herein, (b) the representations and
warranties of the Borrower contained in the Credit Agreement and the other Loan
Documents are true and correct in all material respects on and as of the date
of this Borrowing Base Certificate except to the extent such representations
and warranties relate to an earlier date, (c) this Borrowing Base
Certificate has been prepared in accordance with the applicable provisions of
the Credit Agreement relating to the computation of the Borrowing Base and the
various components thereof, each of the assets listed in the attachment hereto
being an Eligible Portfolio Investment as defined in the Credit Agreement
subject to a perfected first priority Lien in favor of the Administrative Agent
in accordance with said definition, and (d) as of the date of this
Borrowing Base Certificate, there exists no Default or Event of Default.


 


 


	
   

  	
  KKR PEI INVESTMENTS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Its general partner KKR
  PEI Associates, L.P.,

  
	
   

  	
   

  	
  acting through its
  general partner

  
	
   

  	
   

  	
  KKR PEI GP Limited

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: