Exhibit 10.9


 


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

  
	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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