Exhibit 10.8


 


EXECUTION COPY


 




 





CREDIT AGREEMENT


 


dated as of


 


February 26, 2008


 


among


 


KOHLBERG KRAVIS ROBERTS &
CO. L.P.,


 


The Other Borrowers Party
Hereto,


 


The Lenders Party Hereto


 


and


 


HSBC BANK PLC,

as Administrative Agent


 






 


HSBC SECURITIES (USA) INC.,

as Sole Lead Arranger and Sole Bookrunner




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
  ARTICLE 1

  
	
  DEFINITIONS

  
	
   

  
	
  Section 1.01. Defined Terms

  	
   

  	
  1

  
	
  Section 1.02. Classification of
  Loans and Borrowings

  	
   

  	
  18

  
	
  Section 1.03. Terms Generally

  	
   

  	
  18

  
	
  Section 1.04. Accounting Terms; GAAP

  	
   

  	
  18

  
	
  Section 1.05. Exchange Rates;
  Currency Equivalents

  	
   

  	
  19

  
	
  Section 1.06. Additional Alternative
  Currencies

  	
   

  	
  19

  
	
  Section 1.07. Change of Currency

  	
   

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE CREDITS

  
	
   

  
	
  Section 2.01. Commitments

  	
   

  	
  20

  
	
  Section 2.02. Loans and Borrowings

  	
   

  	
  21

  
	
  Section 2.03. Requests for
  Borrowings

  	
   

  	
  22

  
	
  Section 2.04. Swingline Loans

  	
   

  	
  23

  
	
  Section 2.05. Letters of Credit

  	
   

  	
  24

  
	
  Section 2.06. Funding of Borrowings

  	
   

  	
  29

  
	
  Section 2.07. Interest Elections

  	
   

  	
  29

  
	
  Section 2.08. Termination and
  Reduction of Commitments

  	
   

  	
  31

  
	
  Section 2.09. Repayment of Loans;
  Evidence of Debt

  	
   

  	
  31

  
	
  Section 2.10. Prepayment of Loans;
  Collateralization of LC Exposure

  	
   

  	
  32

  
	
  Section 2.11. Fees

  	
   

  	
  33

  
	
  Section 2.12. Interest

  	
   

  	
  34

  
	
  Section 2.13. Alternate Rate of
  Interest

  	
   

  	
  35

  
	
  Section 2.14. Increased Costs

  	
   

  	
  36

  
	
  Section 2.15. Break Funding Payments

  	
   

  	
  38

  
	
  Section 2.16. Taxes

  	
   

  	
  38

  
	
  Section 2.17. Payments Generally;
  Pro Rata Treatment; Sharing of Set-offs

  	
   

  	
  40

  
	
  Section 2.18. Mitigation
  Obligations; Replacement of Lenders

  	
   

  	
  42

  
	
  Section 2.19. Additional Borrowers

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  	
   

  
	
  Section 3.01. Organization; Powers

  	
   

  	
  43

  
	
  Section 3.02. Authorization;
  Enforceability

  	
   

  	
  43

  
	
  Section 3.03. Governmental
  Approvals; No Conflicts

  	
   

  	
  44

  
	
  Section 3.04. Financial Condition;
  No Material Adverse Change

  	
   

  	
  44

  
	
  Section 3.05. Litigation and
  Environmental Matters

  	
   

  	
  45

  
	
  Section 3.06. Compliance with Laws

  	
   

  	
  45

  



 


i

















 


	
  Section 3.07. Investment Company
  Status; Regulatory Restrictions on Borrowing

  	
   

  	
  45

  
	
  Section 3.08. Taxes

  	
   

  	
  45

  
	
  Section 3.09. ERISA

  	
   

  	
  45

  
	
  Section 3.10. Disclosure

  	
   

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  CONDITIONS

  
	
   

  	
   

  	
   

  
	
  Section 4.01. Effective Date

  	
   

  	
  46

  
	
  Section 4.02. Each Credit Event

  	
   

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  AFFIRMATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 5.01. Financial Statements;
  Other Information

  	
   

  	
  49

  
	
  Section 5.02. Notices of Material
  Events

  	
   

  	
  51

  
	
  Section 5.03. Existence; Conduct of
  Business

  	
   

  	
  52

  
	
  Section 5.04. Payment of Taxes

  	
   

  	
  52

  
	
  Section 5.05. Maintenance of
  Properties; Insurance

  	
   

  	
  52

  
	
  Section 5.06. Books and Records;
  Inspection Rights

  	
   

  	
  52

  
	
  Section 5.07. Compliance with Laws

  	
   

  	
  53

  
	
  Section 5.08. Use of Proceeds and
  Letters of Credit

  	
   

  	
  53

  
	
  Section 5.09. Additional General
  Partner Guarantors or Co-Borrowers

  	
   

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  NEGATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 6.01. Indebtedness

  	
   

  	
  53

  
	
  Section 6.02. Liens

  	
   

  	
  55

  
	
  Section 6.03. Fundamental Changes

  	
   

  	
  56

  
	
  Section 6.04. Transactions with
  Affiliates

  	
   

  	
  57

  
	
  Section 6.05. Fiscal Year

  	
   

  	
  57

  
	
  Section 6.06. Financial Covenant

  	
   

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  EVENTS OF DEFAULT

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  THE ADMINISTRATIVE AGENT

  
	
   

  	
   

  	
   

  
	
  Section 8.01. Appointment and
  Authorization

  	
   

  	
  60

  
	
  Section 8.02. Rights and Powers as a
  Lender

  	
   

  	
  60

  
	
  Section 8.03. Limited Parties and
  Responsibilities

  	
   

  	
  61

  
	
  Section 8.04. Authority to Rely on
  Certain Writings, Statements and Advice

  	
   

  	
  61

  
	
  Section 8.05. Sub-Agents and Related
  Parties

  	
   

  	
  62

  
	
  Section 8.06. Resignation; Successor
  Administrative Agent

  	
   

  	
  62

  



 


ii

















 


	
  Section 8.07. Credit Decisions by
  Lenders

  	
   

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  MULTIPLE BORROWERS

  
	
   

  	
   

  	
   

  
	
  Section 9.01. Joint and Several

  	
   

  	
  63

  
	
  Section 9.02. No Subrogation

  	
   

  	
  63

  
	
  Section 9.03. Full Knowledge

  	
   

  	
  64

  
	
  Section 9.04. Reinstatement

  	
   

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 10.01. Notices

  	
   

  	
  64

  
	
  Section 10.02. Waivers; Amendments

  	
   

  	
  66

  
	
  Section 10.03. Expenses; Indemnity;
  Damage Waiver

  	
   

  	
  67

  
	
  Section 10.04. Successors and Assigns

  	
   

  	
  69

  
	
  Section 10.05. Survival

  	
   

  	
  73

  
	
  Section 10.06. Counterparts;
  Integration; Effectiveness

  	
   

  	
  73

  
	
  Section 10.07. Severability

  	
   

  	
  73

  
	
  Section 10.08. Right of Setoff

  	
   

  	
  74

  
	
  Section 10.09. Governing Law;
  Jurisdiction; Consent to Service of Process

  	
   

  	
  74

  
	
  Section 10.10. Waiver of Jury Trial

  	
   

  	
  75

  
	
  Section 10.11. Headings

  	
   

  	
  75

  
	
  Section 10.12. Confidentiality

  	
   

  	
  75

  
	
  Section 10.13. Interest Rate
  Limitation

  	
   

  	
  76

  
	
  Section 10.14. “Know Your Customer”
  Checks.

  	
   

  	
  77

  
	
  Section 10.15. Judgment Currency

  	
   

  	
  78

  



 


SCHEDULES:


 


	
  Schedule 1.01

  	
   

  	
  –  Mandatory Cost

  
	
  Schedule 2.01

  	
   

  	
  –  Commitments

  
	
  Schedule 3.05

  	
   

  	
  –  Disclosed Matters

  
	
  Schedule 6.01

  	
   

  	
  –  Existing Indebtedness

  
	
  Schedule 6.02

  	
   

  	
  –  Existing Liens

  



 


iii

















 


EXHIBITS:


 


Exhibit A — Form of Assignment


Exhibit B — Form of General Partner Guaranty


Exhibit C — Form of Co-Borrower Agreement


Exhibit D — Form of Co-Borrower Termination


Exhibit E — Form of Borrowing Request


Exhibit F — Form of Interest Election Request


 


iv

















 


CREDIT AGREEMENT (this “Agreement”)
dated as of February 26, 2008 among KOHLBERG KRAVIS ROBERTS & CO.
L.P., the other BORROWERS party hereto, the LENDERS party hereto and HSBC BANK
PLC, as Administrative Agent.


 


The parties hereto agree as follows:


 


ARTICLE 1


DEFINITIONS


 


Section 1.01.  Defined Terms.  As used in this Agreement, the
following terms have the meanings specified below:


 


“ABR”, when used
in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.


 


“Administrative Agent”
means HSBC Bank plc, in its capacity as administrative agent under the Loan
Documents.


 


“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 through one or more intermediaries, Controls or is Controlled by or
is under common Control with such specified Person; provided
that no portfolio company (or entity Controlled by a portfolio company) of any
fund or partnership managed or Controlled by the Company and its Affiliates
shall be deemed to be an Affiliate for purposes of this Agreement.


 


“Alternate Base Rate”
means, for any day, a rate per annum equal to the greater of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1⁄2 of 1%.  Any change
in the Alternate Base Rate due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective from and including the effective date
of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.


 


“Alternative Currency”
means each of Euro, Sterling, Yen, Australian Dollars, Canadian Dollars and
each other currency (other than U.S. Dollars) that is approved in accordance
with Section 1.06.


 


“Applicable Percentage”
means, with respect to any Lender, the percentage of the total Commitments
represented by such Lender’s Commitment. 
If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.


 

















 


“Applicable Rate”
means, for any day, (i) with respect to any Eurocurrency Loan, .50% per
annum, or (ii) with respect to the facility fees payable hereunder, .05%
per annum.


 


“Approved Fund”
has the meaning assigned to such term in Section 10.04.


 


“Assignment”
means an assignment and assumption entered into by a Lender and an assignee
(with the consent of any party whose consent is required by Section 10.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any
other form approved by the Administrative Agent.


 


“Australian Dollar”
means the lawful currency of the Commonwealth of Australia.


 


“Availability Period”
means the period from and including the Effective Date to but excluding the
earlier of the Maturity Date and the date of termination of the Commitments.


 


“Board” means
the Board of Governors of the Federal Reserve System of the United States of
America.


 


“Borrower” means
the Company or any Co-Borrower.


 


“Borrower Group Companies”
means the Credit Parties and the Subsidiaries.


 


“Borrowing”
means (a) Loans of the same Type and in the same currency, made, converted
or continued on the same date and, in the case of Eurocurrency Loans, as to
which a single Interest Period is in effect, or (b) a Swingline Loan.


 


“Borrowing Request”
means a request for a Borrowing in accordance with Section 2.03 or Section 2.04
and in the form of Exhibit E.


 


“Business Day”
means any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City or London are authorized or required by law to remain
closed; provided that, (i) when used in
connection with a Loan denominated in Euros, the term “Business Day”
shall also exclude any day which is not a TARGET Day, and (ii) when used
in connection with a Loan denominated in any other currency, the term “Business Day” shall also exclude any day which is not a day
on which dealings in such currency can occur in the London interbank market and
on which banks are open for business in the principal financial center for that
currency.


 


“Canadian Dollar”
means the lawful currency of Canada.


 


2

















 


“Capital Lease Obligations”
of any 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) real or
personal property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases 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.


 


“Cash Interest Expense”
means for any period, the cash interest expense (including cash interest
expense attributable to capital leases of the Company as determined on an
unconsolidated basis in accordance with GAAP), net of cash interest income, of
the Company with respect to all outstanding Indebtedness of the Company,
including all commissions, discounts and other fees and charges owed with
respect to letters of credit, letters of guarantee, bankers’ acceptance
financing and net costs under hedge agreements (other than currency swap
agreements, currency future or currency option contracts and other similar
agreements) and including, without duplication, capitalized interest in
connection with the purchase of assets to the extent paid in cash, but
excluding, however, amortization of deferred financing costs and any other
amounts of non-cash interest, all as calculated on an unconsolidated basis in
accordance with GAAP.


 


“Change in Control”
means the failure of Persons owning on the Effective Date, directly or
indirectly, beneficially and of record, Equity Interests representing all of
the aggregate voting power and aggregate equity value represented by the issued
and outstanding Equity Interests in the Credit Parties, (i) to own,
directly or indirectly, beneficially and of record, at least 662/3% of the Equity Interests representing all
of the aggregate voting power represented by the issued and outstanding Equity
Interests in the Credit Parties (including any Persons which become Credit
Parties after the Effective Date) or (ii) to Control the Credit Parties
(including any Persons which become Credit Parties after the Effective Date).


 


“Change in Law”
means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or
in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section 2.14(b), by any lending office
of such Lender or by such Lender’s or Issuing Bank’s holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.


 


“Class”, when
used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Global Loans or Swingline Loans.


 


“Co-Borrower”
means, at any time, any Guarantor or other Person designated as a Co-Borrower
by the Company pursuant to Section 2.19 that has


 


3

















 


not ceased to be a Co-Borrower
pursuant to such Section; provided that
the Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent, (a) documents of the types
described in Section 4.01(b) and 4.01(c) with respect to such
Co-Borrower and the Co-Borrower Agreement executed by it and (b) the
information described in Section 5.01(b), 5.01(d), 5.01(f) and 5.01(g) for
the most recently ended period for which such information is required to have
been delivered for the Co-Borrowers or their related Investment Funds.


 


“Co-Borrower Agreement”
means a Co-Borrower Agreement substantially in the form of Exhibit C.


 


“Co-Borrower Termination”
means a Co-Borrower Termination substantially in the form of Exhibit D.


 


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


 


“Commitments”
means, with respect to each Lender, the commitment of such Lender to make
Global Loans and to acquire participations in Letters of Credit and Swingline
Loans hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender’s Credit Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04.  The
initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in
the Assignment pursuant to which such Lender shall have assumed its Commitment,
as applicable.  The initial aggregate
amount of the Lenders’ Commitments is $1,000,000,000.


 


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


 


“Constituent Documents”
means, with respect to any Person, (a) the articles of incorporation,
certificate of incorporation, constitution or certificate of formation  (or the equivalent organizational documents)
of such Person, (b) the by-laws, operating agreement (or the equivalent
governing documents) of such Person and (c) any document setting forth the
manner of election and duties of the directors or managing members of such
Person (if any) and the designation, amount or relative rights, limitations and
preferences of any class or series of such Person’s Equity Interests.


 


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


 


4














 


“Credit Exposure”
means, with respect to any Lender at any time, the sum of the outstanding
principal amount of such Lender’s Global Loans and its LC Exposure and
Swingline Exposure at such time.


 


“Credit Parties”
means the Borrowers and the Guarantors.


 


“Default” means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event of
Default.


 


“Disclosed Matters”
means the actions, suits and proceedings and the environmental matters
disclosed in Schedule 3.05.


 


“Domestic Co-Borrower”
means a Co-Borrower organized under the laws of the United States or any state
or territory thereof or the District of Columbia.


 


“Effective Date”
means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 10.02).


 


“EMU” means the
economic and monetary union in accordance with the Treaty of Rome 1957, as
amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the
Amsterdam Treaty of 1998.


 


“EMU Legislation”
means the legislative measures of the European Council for the introduction of,
changeover to or operation of a single or unified European currency.


 


“Environmental Laws”
means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, the preservation or reclamation of natural resources, the management,
release or threatened release of any Hazardous Material or to health and safety
matters.


 


“Environmental Liability”
means any liability, contingent or otherwise (including any liability for
damages, costs of remediation, fines, penalties or indemnities), of any Credit
Party directly or indirectly resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.


 


“Equity Interests”
means (i) shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust


 


5

















 


or other equity ownership
interests in a Person, and (ii) any warrants, options or other rights to
purchase or acquire any such shares or interests.


 


“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
any Credit Party, 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 any ERISA Affiliate of any
liability under Title IV of ERISA with respect to the termination of any Plan; (e) the
receipt by any ERISA Affiliate 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 any ERISA Affiliate
of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from any ERISA Affiliate
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.


 


“Euro” and “EUR” mean the single currency of the Participating Member
States introduced in accordance with the EMU Legislation.


 


“Eurocurrency”,
when used with respect to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Eurocurrency Rate.


 


“Eurocurrency Rate”
means, with respect to any Eurocurrency Borrowing for any Interest Period, the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”) from the relevant page of the Reuters
screen (or any successor to or substitute for such screen, providing rate
quotations comparable to those currently provided on such page of such
screen, as determined by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in the currency of
such Eurocurrency Borrowing with a maturity comparable to such Interest Period;
provided that if the


 


6

















 


currency of such Eurocurrency
Borrowing is Sterling, such rate shall be determined on the first day of such
Interest Period.  If such rate is not
available at such time for any reason, then the “Eurocurrency
Rate” with respect to such Eurocurrency Borrowing for such Interest
Period shall be the rate at which deposits in the relevant currency of
$5,000,000 (or the appropriate Other Currency Equivalent thereof) and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement (or, in the case of Sterling, on the first day)
of such Interest Period.


 


“Event of Default”
has the meaning assigned to such term in Article 7.


 


“Excluded Taxes”
means, with respect to any Lender Party or any other recipient of any payment
to be made by or on account of any obligation of any Credit Party hereunder, (a) income
or franchise Taxes imposed on (or measured by) its net income by the United
States of America, by a jurisdiction (or any political subdivision thereof) by
reason of such recipient doing (or having done) business in the jurisdiction
(or any political subdivision thereof) imposing such Tax (other than any such
connection arising strictly as a result of such recipient having executed,
delivered or performed its obligations under or received a payment pursuant to
this Agreement), or 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, (b) any branch profits Taxes imposed by the United
States of America or any similar Tax imposed by any other jurisdiction in which
the applicable Credit Party is located, (c) in the case of a Lender, any
withholding Tax imposed by the United States of America or the Cayman Islands
at the time such Lender first becomes a party to this Agreement with respect to
amounts payable by any Person that is then a Borrower under this Agreement,
except to the extent that such Lender’s assignor (if any) was entitled at the
time of assignment to receive additional amounts with respect to withholding
Taxes pursuant to Section 2.16(a), and (d) any Taxes to the extent
attributable to such Lender’s failure to comply with a request of the Company
to provide the documentation described in Section 2.16(e).


 


“Federal Funds Effective
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.


 


7

















 


“Foreign Lender”
means, with respect to any Loan, any Lender making such Loan that is organized
under the laws of a jurisdiction other than the Relevant Jurisdiction.


 


“Funds” means
for any period for which such amount is being determined, without duplication,
total revenue of the Company minus all non-fund expenses and fund expenses of
the Company plus Net Cash Income (determined on an unconsolidated basis in
accordance with GAAP), excluding (x) any items that are classified as
extraordinary in accordance with GAAP, (y) any reverse breakup fees and
litigation expenses, and (z) any non-cash expenses attributable to direct
or indirect partner/equity holder level transactions, including those resulting
from purchase accounting and compensatory arrangements, that  occur as a result of the initial public
offering of common units of KKR & Co. L.P., the related reorganization
of the ownership structure  of the direct
or indirect owners of the Company and the compensation of executives by the
direct or indirect owners of  the
Company.  For the avoidance of doubt, (a) total
revenue of the Company shall include management fees that have been waived by
the Company if the waived amount is retained by the Investment Fund that was
required to pay it and remains available to be paid to the Company upon
request, and shall exclude management fees that are deferred and expected to be
refunded to the limited partners of the Company’s private equity funds and (b) non-fund
and fund expenses of the Company shall exclude (i) bonuses paid to
executives and cash distributions paid to partners (including any such payments
made indirectly in the form of fees paid by the Company to affiliates to fund
such payments) and (ii) interest expense.


 


“GAAP” means
generally accepted accounting principles in the United States of America.


 


“General Partner”
means each of KKR Associates Millennium L.P., a Delaware limited partnership,
KKR Associates Millennium (Overseas), Limited Partnership, an Alberta, Canada
limited partnership, KKR Associates Europe, Limited Partnership, an Alberta,
Canada limited partnership, KKR Associates Europe II, Limited Partnership, an
Alberta, Canada limited partnership, KKR Associates 2006 L.P., a Delaware
limited partnership, KKR Associates 2006 (Overseas), Limited Partnership, a
Cayman Islands exempted limited partnership, KKR Associates Asia L.P., a Cayman
Islands exempted limited partnership, and any other Affiliate of the Company
which acts as the general partner of a private equity fund formed after the
Effective Date with assets in excess of $500,000,000.


 


“General Partner Guaranty”
means the Guaranty executed and delivered by the Guarantors on the Effective
Date, substantially in the form of Exhibit B.


 


“Global Loan”
means a Loan made in U.S. Dollars or in one or more Alternative Currencies
pursuant to Section 2.01(a).


 


8

















 


“Governmental Authority”
means the government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Guarantor”
means, unless it has been designated as a Co-Borrower pursuant to Section 2.19,
each of the General Partners listed by name in the definition of “General
Partner” and any other General Partner that becomes a party to the General
Partner Guaranty or a substantially similar Support Document in favor of the
Lenders in accordance with the provisions of Section 5.09; provided that the Administrative Agent shall have received,
in form and substance satisfactory to the Administrative Agent, (a) documents
of the types described in Section 4.01(b) and 4.01(c) with
respect to such Guarantor and the Guaranty executed by it and (b) the
information described in Section 5.01(a), 5.01(d), 5.01(f) and 5.01(g) for
the most recently ended period for which such information is required to have
been delivered for the Guarantors or their related Investment Funds.


 


“Guaranty” 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 advance or supply funds for
the purchase or payment of) such Indebtedness or to purchase (or to advance or
supply funds for the 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 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 (d) as an account party in respect of any letter of
credit or letter of guaranty issued to support such Indebtedness; provided, that the term “Guaranty” shall not include
endorsements for collection or deposit in the ordinary course of business.  The term “Guarantee”
used as a verb has a corresponding meaning.


 


“Hazardous Materials”  means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.


 


“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 under conditional sale or
other title retention agreements relating to property acquired by such Person, (d) all
obligations of such Person in respect of the deferred


 


9

















 


purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of
business), (e) 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, (f) all
Guaranties by such Person of Indebtedness of others, (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters
of guaranty, (i) all obligations, contingent or otherwise, of such Person
in respect of bankers’ acceptances and (j) net obligations of such Person
under any Swap Contract; provided that
Indebtedness shall not include (i) deferred or prepaid revenue, or (ii) purchase
price holdbacks in respect of a portion of the purchase price of an asset to
satisfy warranty or other unperformed obligations of the respective
seller.  The amount of Indebtedness of
any person for purposes of clause (e) above shall be deemed to be equal to
the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the
fair market value of the property encumbered thereby as determined by such
person in good faith.  The amount of any
net obligation under any Swap Contract on any date shall be deemed to be the
Swap Termination Value thereof as of such date.


 


“Indemnified Taxes”
means Taxes other than Excluded Taxes.


 


“Interest Election Request”
means a request by the Company to change or continue the Type of a Borrowing in
accordance with Section 2.07 and in the form of Exhibit F.


 


“Interest Payment Date”
means (a) with respect to any ABR Loan (other than a Swingline Loan), the
last day of each March, June, September and December, (b) with
respect to any Eurocurrency Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurocurrency Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months’ duration after the first day of such Interest
Period, and (c) with respect to any Swingline Loan, the day that such Loan
is required to be repaid.


 


“Interest Period”
means, with respect to any Eurocurrency Borrowing, the period beginning on the
date of such Borrowing specified in the applicable Borrowing Request or on the
date specified in the applicable Interest Election and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter (or such other period as all of the Lenders may agree), as the
Company may elect; provided, that (i) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, and (ii) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no


 


10

















 


numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period.


 


“International Plan”
means any “defined benefit plan” as such term is defined in Section 3(35)
of ERISA, whether or not such employee benefit plan is subject to ERISA or the
Code, which is sponsored, maintained, administered, contributed to, extended or
arranged by any Borrower or any of its Subsidiaries under which any Borrower or
any of its Subsidiaries has any liability (contingent or otherwise) and covers
any current or former employee, officer, director or independent contractor of
any Borrower or any of its Subsidiaries who is located exclusively outside of
the United States.


 


“Investment Fund”
means each of KKR Millennium Fund L.P., a Delaware limited partnership, KKR
Millennium Fund (Overseas), Limited Partnership, an Alberta, Canada limited
partnership, KKR European Fund, Limited Partnership, an Alberta, Canada limited
partnership, KKR European Fund II, Limited Partnership, an Alberta, Canada
limited partnership, KKR 2006 Fund L.P., a Delaware limited partnership, KKR
2006 Fund (Overseas), Limited Partnership, a Cayman Islands exempted limited
partnership, KKR Asian Fund L.P., a Cayman Islands exempted limited
partnership, and any other private equity fund formed after the Effective Date
the general partner of which is a General Partner.


 


“Issuing Bank”
means HSBC Bank plc, in its capacity as an issuer of Letters of Credit
hereunder, and any successors in such capacity as provided in Section 2.05(i).  The Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the
Issuing Bank, in which case the term “Issuing Bank” shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.


 


“LC Disbursement”
means a payment made by the Issuing Bank pursuant to a Letter of Credit.


 


“LC Exposure”
means, at any time, the U.S. Dollar Equivalent of the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Company at such time.  The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.


 


“Lender Parties”
means the Lenders, the Issuing Bank and the Administrative Agent.


 


“Lenders” means
the Persons listed on Schedule 2.01 and any other Person that shall have become
a party hereto pursuant to an Assignment or Section 2.01(b), other than
any such Person that ceases to be a party hereto


 


11

















 


pursuant to an Assignment.  Unless the context otherwise requires, the
term “Lenders” includes the Swingline Lender.


 


“Letter of Credit”
means any letter of credit issued pursuant to this Agreement.


 


“Lien” means,
with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.


 


“Loan Documents”
means this Agreement, the Co-Borrower Agreements, any promissory notes issued
pursuant to Section 2.09(e) and the Support Documents.


 


“Loans” means
the loans made by the Lenders to the Borrowers pursuant to this Agreement.


 


“Mandatory Cost”
means, with respect to any period, the percentage rate per annum determined in
accordance with Schedule 1.01.


 


“Material Adverse Effect”
means a material adverse effect on (a) the business, results of
operations, or financial condition of the Credit Parties taken as a whole, (b) the
ability of any Credit Party to perform its obligations under the Loan Documents
or (c) the validity or enforceability of the Loan Documents or the rights
or remedies of any Lender Party thereunder.


 


“Material Indebtedness”
means Indebtedness (other than the Loans and Letters of Credit) of any one or
more of the Borrower Group Companies in an aggregate principal amount exceeding
$50,000,000; provided that in the case of any
Subsidiary, Material Indebtedness shall consist solely of Indebtedness of the
types described in subclauses (a) and (b) of the definition thereof
(other than the Loans and Letters of Credit and Indebtedness incurred under Section 6.01(a)(iii)).


 


“Material Subsidiary”
means any Subsidiary which, together with its own subsidiaries, would be
consolidated in the consolidated financial statements of the Company if such
financial statements were prepared in accordance with GAAP for such quarter or
period, accounts for (i) more than 5% of the consolidated assets of the
Company as of the last day of the most recently ended fiscal quarter of the
Company, (ii) more than 5% of the consolidated revenues of the Company for
the most recently ended period of four consecutive fiscal quarters of the
Company, or (iii) more than 5% of Funds for the most recently ended
period of four consecutive fiscal quarters of the Company.


 


“Maturity Date” means February 26,
2013.


 


12














 


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


 


“Net  Cash Income” means (a) cash received by the Company
from subsidiaries and equity method investments (determined on an
unconsolidated basis in accordance with GAAP) which is derived from income
generated from ongoing, recurring business activities minus (b) the
aggregate amount of operating losses of such subsidiaries and equity method
investees (excluding any losses relating to such subsidiaries’ and equity method
investees’ investment activities); provided that
the amount of operating losses included in clause (b) above shall not
exceed the amount of cash paid by the Company to such subsidiaries and equity
method investees during the relevant period of determination.  For the avoidance of doubt, Net Cash Income
from subsidiaries and equity method investments that exist on the Effective
Date will be derived from cash received or paid by the Company consisting of
its share of (i) net income of KKR Financial LLC and (ii) net loss of
KKR Capital Markets Holdings L.P.  For
cash received from future subsidiaries and equity method investments to qualify
as Net Cash Income, such cash must be derived from the ongoing, recurring
business activities of such entities.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Credit Party arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising, and including interest and fees that accrue
after (or would accrue but for) the commencement by or against any Credit Party
or any Affiliate thereof of any proceeding under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding.


 


“Other Currency Equivalent”
means, at any time, with respect to any amount denominated in U.S. Dollars, the
equivalent amount thereof in the applicable Alternative Currency, as determined
by the Administrative Agent at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
such Alternative Currency with U.S. Dollars.


 


“Other Taxes”
means any and 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.


 


“Outstanding Amount” means (i) with respect to any Class of
Loans on any date, the U.S. Dollar Equivalent of the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments
or repayments of such Class of Loans occurring on such date; and (ii) with
respect to 


 


13

















 


LC Exposure on any date, the
U.S. Dollar Equivalent of the aggregate outstanding amount of such LC Exposure
on such date after giving effect to any drawings or reimbursements occurring on
such date.


 


“Participant”
has the meaning set forth in Section 10.04.


 


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


 


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


 


“Permitted Encumbrances”
means:


 


(a)           Liens
imposed by law for taxes, assessments or similar charges that are not overdue
by more than 30 days or are being contested in compliance with Section 5.04;


 


(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 30 days or are being contested in
compliance with Section 5.04;


 


(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)           judgment
liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article 7;


 


(f)            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 any
Borrower Group Company;


 


(g)           leases,
licenses, subleases or sublicenses granted to others in the ordinary course of
business of any Borrower Group Company that do not materially interfere with
the conduct of its business; and


 


(h)           Liens
created in the ordinary course of business in favor of banks and other
financial institutions over credit balances of any bank accounts of any
Borrower Group Company held at such banks or financial institutions;


 


14

















 


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 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.


 


“Prime Rate”
means the rate of interest per annum publicly announced from time to time by
HSBC Bank USA, National Association, as its prime rate in effect at its office
located at 452 Fifth Avenue, New York, New York 10018; each change in the Prime
Rate shall be effective from and including the date such change is publicly
announced as being effective.


 


“Register” has
the meaning specified in Section 10.04.


 


“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.


 


“Relevant Jurisdiction”
means (i) in the case of any Loan to the Company or any Domestic
Co-Borrower, the United States of America, and (ii) in the case of any
Loan to any other Co-Borrower, the jurisdiction imposing (or having the power
to impose) withholding tax on payments by such Co-Borrower under this
Agreement.


 


“Required Lenders”
means, at any time, Lenders having Credit Exposures and unused Commitments
representing more than 50% (or, if there are fewer than four Lenders at such
time, 66 2/3%) of the
sum of the total Credit Exposures and unused Commitments at such time.


 


“Revaluation Date”
means with respect to any Loan or Letter of Credit, each of the following:  (i) each date of receipt by the
Administrative Agent of a Borrowing Request, or a request for the issuance of a
Letter of Credit, denominated in an Alternative Currency, (ii) each date
of receipt by the Administrative Agent of an Interest Election Request (or, if
a Borrowing is continued pursuant to Section 2.07(e), each date by which
an Interest Election Request would have been due), or a request for the
amendment, renewal or extension of a Letter of Credit, denominated in an
Alternative Currency, (iii) two Business Days prior to the last Business
Day of February, May, August and November of each year, and (iv) such
additional dates as the Administrative Agent shall determine or the Required
Lenders shall require.


 


15

















 


“Spot Rate”
means, on any day, for any currency, the spot rate quoted by HSBC Bank plc, in
London at approximately 11:00 a.m. for the purchase of such currency with
another currency for delivery two Business Days later.


 


“Sterling” and “£” mean the lawful currency of the United Kingdom.


 


“subsidiary”
means, with respect to any Person at any date, (a) any corporation more
than 50% of whose Equity Interests of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time Equity Interests of any
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such Person
directly or indirectly through subsidiaries, or (b) any limited liability
company, partnership, association, joint venture or other entity of which such
Person directly or indirectly through subsidiaries has more than a 50% equity
interest at the time.


 


“Subsidiary”
means any subsidiary of the Company.


 


“Support Documents”
means the General Partner Guaranty and each other Guaranty, instrument or
document executed and delivered pursuant to Section 5.09 to Guarantee any
of the Obligations.


 


“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or
liabilities under any Master Agreement.


 


“Swap Termination Value”
means, in respect of any one or more Swap Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have
been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to the
date referenced in clause (a), the amount(s) determined as the
mark-to-market 


 


16

















 


value(s) for such Swap
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).


 


“Swingline Exposure”
means, at any time, the aggregate principal amount of all Swingline Loans
outstanding at such time.  The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total  Swingline Exposure at such time.


 


“Swingline Lender”
means HSBC Bank plc, in its capacity as lender of Swingline Loans hereunder.


 


“Swingline Loan”
means a Loan made pursuant to Section 2.04.


 


“TARGET Day”
means any day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET) payment system (or, if such payment system ceases to
be operative, such other payment system (if any) determined by the
Administrative Agent to be a suitable replacement) is open for the settlement
of payments in Euro.


 


“Taxes” means
any and all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto.


 


“Transactions”
means the execution, delivery and performance by the Credit Parties of this
Agreement, the Co-Borrower Agreements and the Support Documents, the borrowing
of Loans, the use of the proceeds thereof and the issuance of Letters of Credit
hereunder.


 


“Type”, when
used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Eurocurrency Rate or the Alternate Base Rate.


 


“U.S. Dollar  Equivalent” means, at any time, (a) with respect to any
amount denominated in U.S. Dollars, such amount, and (b) with respect to
any amount denominated in any Alternative Currency, the equivalent amount
thereof in U.S. Dollars as determined by the Administrative Agent at such time
on the basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of U.S. Dollars with such Alternative
Currency.


 


“U.S. Dollars”
and “$” mean the lawful currency of the
United States of America.


 


“USA PATRIOT Act”
means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Title III of
Pub.L.107-56, signed into law October 26, 2001, as amended.


 


17

















 


“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.


 


“Yen” means the
lawful currency of Japan.


 


Section 1.02.  Classification of Loans and
Borrowings.  For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a “Global Loan”)
or by Type (e.g., a “Eurocurrency
Loan”) or by Class and Type (e.g.,
a “Eurocurrency Global Loan”).  Borrowings also may be classified and
referred to by Class (e.g., a “Global Borrowing”) or by Type (e.g.,
a “Eurocurrency Borrowing”) or by Class and
Type (e.g., a “Eurocurrency
Global Borrowing”).


 


Section 1.03.  Terms Generally.  The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  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, (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 and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


Section 1.04.  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, with such
adjustments thereto as are reflected in and consistent with the financial
statements referred to in Section 3.04(a), but in any event without giving
effect to principles of consolidation; provided that,
if the Company notifies the Administrative Agent that the Company 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
Company that the Required 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 


 


18

















 


such change shall have become
effective until  such notice shall have
been withdrawn or such provision  amended
in accordance herewith.


 


Section 1.05.  Exchange Rates; Currency
Equivalents.  (a) The
Administrative Agent shall determine the Spot Rates as of each Revaluation Date
to be used for calculating U.S. Dollar Equivalent amounts of Borrowings and
Outstanding Amounts denominated in Alternative Currencies.  Such Spot Rates shall become effective as of
such Revaluation Date and shall be the Spot Rates employed in converting any
amounts between the applicable currencies until the next Revaluation Date to
occur.


 


(b)   Wherever in this Agreement in connection with
a Borrowing, conversion, continuation or prepayment of a Eurocurrency Loan an
amount, such as a required minimum or multiple amount, is expressed in U.S.
Dollars, but such Borrowing or Loan is denominated in an Alternative Currency,
such amount shall be the relevant Other Currency Equivalent of such U.S. Dollar
amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a
unit being rounded upward), as determined by the Administrative Agent.


 


Section 1.06.  Additional Alternative
Currencies.  (a) The
Company may from time to time request that Eurocurrency Loans be made or
Letters of Credit be issued in a currency other than those specifically listed
in the definition of “Alternative Currency”;
provided that such requested currency is
a lawful currency (other than U.S. Dollars) that is readily available and
freely transferable and convertible into U.S. Dollars.  Any such request shall be subject to the
approval of the Administrative Agent, the Issuing Bank and the Lenders.


 


(b)      Any such request shall be made to the
Administrative Agent not later than 11:00 a.m., ten Business Days prior to
the date of the desired Borrowing (or such other time or date as may be agreed
by the Administrative Agent, in its sole discretion).  In the case of any such request, the
Administrative Agent shall promptly notify the Issuing Bank and each Lender
thereof.  The Issuing Bank and each
Lender shall notify the Administrative Agent, not later than 11:00 a.m.,
five Business Days after receipt of such request, whether it consents, in its
sole discretion, to the making of Eurocurrency Loans or issuance of Letters of
Credit in such requested currency.


 


(c)       Any failure by the Issuing Bank or a
Lender to respond to such request within the time period specified in the
preceding sentence shall be deemed to be a refusal by the Issuing Bank or such
Lender to permit Eurocurrency Loans to be made or Letters of Credit to be
issued in such requested currency.  If
the Administrative Agent, the Issuing Bank and all the Lenders consent to
making Eurocurrency Loans or issuing Letters of Credit in such requested
currency, the Administrative Agent shall so notify the Company and such
currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder. If the Administrative Agent shall fail to obtain consent to
any request for an 


 


19

















 


additional
currency under this Section, the Administrative Agent shall promptly so notify
the Company.


 


Section 1.07.  Change of Currency.  (a) Each obligation of any
Borrower to make a payment denominated in the national currency unit of any
Participating Member State that adopts the Euro as its lawful currency after
the date hereof shall be redenominated into Euro at the time of such adoption
(in accordance with the EMU Legislation). 
If, in relation to the currency of any such Participating Member State,
the basis of accrual of interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in the London
interbank market for the basis of accrual of interest in respect of the Euro,
such expressed basis shall be replaced by such convention or practice with
effect from the date on which such Participating Member State adopts the Euro
as its lawful currency; provided that
if any Borrowing in the currency of such Participating Member State is
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Borrowing, at the end of the then current Interest Period.


 


(b)      Each provision of this Agreement shall be
subject to such reasonable changes of construction as the Administrative Agent
may from time to time specify to be appropriate to reflect the adoption of the
Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.


 


(c)       Each provision of this Agreement also
shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time specify to be appropriate to reflect
a change in currency of any other country and any relevant market conventions
or practices relating to the change in currency.


 


ARTICLE 2


THE CREDITS


 


Section 2.01.  Commitments.  (a) Subject to the terms and
conditions set forth herein, each Lender, severally and not jointly, agrees to
make Global Loans to the Borrowers in U.S. Dollars or in one or more
Alternative Currencies from time to time during the Availability Period in an
aggregate principal amount that will not result in (i) such Lender’s
Credit Exposure exceeding such Lender’s Commitment, or (ii) the sum of the
total Credit Exposures exceeding the total Commitments.  Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Global Loans.


 


(b)      At any time during the Availability
Period, if no Default shall have occurred and be continuing at such time, the
Company may, if it so elects, increase the aggregate amount of the Commitments,
either by designating a 


 


20

















 


Person not
theretofore a Lender and acceptable to the Administrative Agent, the Issuing
Bank and the Swingline Lender  (such
acceptances not to be unreasonably withheld) to become a Lender or by agreeing
with an existing Lender that such Lender’s Commitment shall be so
increased.  Upon execution and delivery
by the Borrowers and such Lender or other Person of an instrument of assumption
in form and amount reasonably satisfactory to the Administrative Agent, such
existing Lender shall have a Commitment as therein set forth or such other
Person shall become a Lender with a Commitment as therein set forth and all the
rights and obligations of the Lender with such a Commitment hereunder; provided that (i) the Company shall provide prompt
notice of such increase to the Administrative Agent, which shall promptly
notify the other Lenders, (ii) the aggregate amount of such increase which
is effective on any day shall be at least $10,000,000, and (iii) the
aggregate amount of the Commitments shall at no time exceed
$2,000,000,000.  Upon any increase in the
aggregate amount of the Commitments pursuant to this Section 2.01(b),
within five Business Days in the case of the ABR Loans outstanding, and at the
end of the then current Interest Period with respect thereto in the case of the
Loans comprising each Eurocurrency Borrowing then outstanding, the Borrowers
shall prepay such Loans in their entirety, and, to the extent the Company
elects to do so and subject to the conditions specified in Article 4, the
Borrowers shall reborrow Loans from the Lenders in proportion to their
respective applicable Commitments after giving effect to such increase, until
such time as all outstanding Loans are held by the Lenders in such proportion.


 


Section 2.02.  Loans and Borrowings.  (a) Each Loan shall be made
as part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their respective Commitments. 
The failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender’s failure to make Loans as
required.


 


(b)      Subject to Section 2.13, each Global
Borrowing shall be comprised entirely of ABR Loans or Eurocurrency Loans, as
the Company may request in accordance herewith. 
All ABR Loans shall be denominated in U.S. Dollars.  Eurocurrency Loans may be denominated in U.S.
Dollars or an Alternative Currency.  Each
Swingline Loan shall be an ABR Loan. 
Each Lender at its option may make any Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect
the obligation of the Borrowers to repay such Loan in accordance with the terms
of this Agreement.


 


(c)       At the commencement of each Interest
Period for any Eurocurrency Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than
$5,000,000.  At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000; provided that an 


 


21

















 


ABR Borrowing
may be in an aggregate amount that is equal to the entire unused balance of the
total Commitments or that is required to finance the reimbursement of an LC Disbursement
as contemplated by Section 2.05(e). 
Each Swingline Loan shall be in an amount that is an integral multiple
of $100,000 and not less than $1,000,000. 
Borrowings of more than one Type and Class may be outstanding at
the same time; provided that there shall not at
any time be more than a total of ten Eurocurrency Borrowings outstanding.


 


(d)      Notwithstanding any other provision of
this Agreement, the Company shall not be entitled to request, or to elect to
convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.


 


Section 2.03.  Requests for Borrowings.  To request a Borrowing, the
Company shall notify the Administrative Agent of such request in the form of a
Borrowing Request signed by the Company not later than 11:00 a.m., New
York City time, (a) in the case of a Eurocurrency Borrowing denominated in
U.S. Dollars, three Business Days before the date of the proposed Borrowing, (b) in
the case of a Eurocurrency Borrowing denominated in an Alternative Currency,
three Business Days before the date of the proposed Borrowing, or (c) in
the case of an ABR Borrowing, on the date of the proposed Borrowing.  Each such Borrowing Request shall be
irrevocable.  Each such Borrowing Request
shall specify the following information in compliance with Section 2.02:


 


(i)                    the
aggregate amount of the requested Borrowing;


 


(ii)                 the
date of such Borrowing, which shall be a Business Day;


 


(iii)              whether
such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;


 


(iv)             in
the case of a Eurocurrency Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of “Interest Period”;


 


(v)                the
location and number of the Company’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06; and


 


(vi)             in
the case of a Eurocurrency Borrowing, the currency of such Borrowing.


 


Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the
requested Borrowing.


 


22














 


Section 2.04.  Swingline Loans.  (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrowers from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $50,000,000
or (ii) the sum of the total Credit Exposures exceeding the total
Commitments; provided that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan.  Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrowers
may borrow, prepay and reborrow Swingline Loans.


 


(b)                                 To
request a Swingline Loan, the Company shall notify the Administrative Agent of
such request by in the form of a Borrowing Request signed by the Company, not
later than 11:00 a.m., New York City time, on the day of a proposed
Swingline Loan.  Each such notice shall
be irrevocable and shall specify the requested date (which shall be a Business
Day) and amount of the requested Swingline Loan.  The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Company.  The Swingline Lender shall make each
Swingline Loan available by means of a credit to the general deposit account of
the Company with the Swingline Lender or disbursement to such other account of
the Company as the Company may specify in its Borrowing Request (or, in the
case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to the Issuing
Bank) on the requested date of such Swingline Loan.


 


(c)                                  The
Swingline Lender may by written notice given to the Administrative Agent not
later than 10:00 a.m., New York City time, on any Business Day require the
Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding.  Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders
will participate.  Promptly upon receipt
of such notice, the Administrative Agent will give notice thereof to each  Lender, specifying in such notice such
Lender’s Applicable Percentage of such Swingline Loan or Loans.  Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Loans.  Each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  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 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Lenders.  The Administrative Agent shall


 


23

















 


promptly notify the Company of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender
from the Borrowers in respect of a Swingline Loan after receipt by the Swingline
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 Swingline Lender, as their interests may appear; provided
that any such payment so remitted shall be repaid to the Swingline Lender or to
the Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to any Borrower for any reason.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the Borrowers of any default
in the payment thereof.


 


Section 2.05.  Letters of Credit.  (a) General.  Subject to the terms and conditions set forth
herein, the Company may request the issuance of Letters of Credit for the
account of the Borrowers, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, from time to time during the Availability
Period.  All Letters of Credit shall be
denominated in U.S. Dollars or an Alternative Currency.  In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Company to,
or entered into by the Borrowers with, the Issuing Bank relating to any Letter
of Credit, the terms and conditions of this Agreement shall control.


 


(b)                                 Notice
of Issuance, Amendment, Renewal or Extension; Certain Conditions.  (i) To request the issuance of a Letter
of Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit), the Company shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (at least five Business
Days (or such shorter period of time as may be agreed by the Administrative
Agent and the Issuing Bank) in advance of the requested date of issuance,
amendment, renewal or extension) a notice (which shall include wording agreed
with the Issuing Bank) requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the requested date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with Section 2.05(c), the amount of such Letter
of Credit, the currency of denomination, the name and address of the
beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit.  If requested by the Issuing Bank, the Company
also shall submit a letter of credit application on the Issuing Bank’s standard
form in connection with any request for a Letter of Credit.  A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Company shall be deemed to represent and warrant
that), after giving effect to


 


24

















 


such issuance, amendment, renewal or
extension (x) the LC Exposure shall not exceed $25,000,000 and (y) the
sum of the total Credit Exposures shall not exceed the total Commitments.


 


(ii)          Promptly after receipt of a notice requesting
the issuance, amendment, renewal or extension of a Letter of Credit, the
Issuing Bank will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such notice from
the Company and, if not, the Issuing Bank will provide the Administrative Agent
with a copy thereof.  Upon receipt by
such Issuing Bank of confirmation from the Administrative Agent that the
requested issuance, amendment, renewal or extension is permitted in accordance
with the terms hereof, then, subject to the terms and conditions hereof, the
Issuing Bank shall, on the requested date, issue a Letter of Credit for the
account of the Borrowers or enter into the applicable amendment, renewal or
extension, as the case may be, in each case in accordance with the Issuing
Bank’s usual and customary business practices.


 


(c)                                  Expiration
Date.  Each Letter of Credit shall
expire at or before the close of business on the earlier of (i) the date
that is one year after the date of the issuance of such Letter of Credit (or,
in the case of any renewal or extension thereof, one year after such renewal or
extension); provided that any 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 date referred to in clause (ii) below)
and (ii) the date that is five Business Days prior to the Maturity Date.


 


(d)                                 Participations.  Effective on the issuance of a Letter of
Credit (or an amendment to a Letter of Credit increasing the amount thereof)
and without any further action on the part of the Issuing Bank or the Lenders,
the Issuing Bank hereby grants to each Lender, and each Lender hereby acquires
from the Issuing Bank, a participation in such Letter of Credit equal to such
Lender’s Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit.  Pursuant to
such participations, each Lender hereby absolutely and unconditionally agrees
to pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Company on the date due as provided in Section 2.05(e),
or of any reimbursement payment required to be refunded to the Company for any
reason.  Each Lender’s obligation to
acquire participations and make payments pursuant to this subsection is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or any reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.


 


25

















 


(e)                                  Reimbursement.  If the Issuing Bank makes any LC Disbursement
in respect of a Letter of Credit, the Borrowers shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the day that
such LC Disbursement is made, if the Company receives notice of such LC Disbursement
before 10:00 a.m., New York City time, on such day, or, if such notice has
not been received by the Company by such time on such day, then not later than
12:00 noon, New York City time, on (i) the Business Day that the Company
receives such notice, if such notice is received before 10:00 a.m., New
York City time, on the day of receipt, or (ii) the next Business Day, if
such notice is not received before such time on the day of receipt; provided that the Company may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 or
2.04 that such payment be financed with an ABR Borrowing or Swingline Loan in
an equivalent amount and, to the extent so financed, the Borrowers’ obligation
to make such payment shall be discharged and replaced by the resulting ABR
Borrowing or Swingline Loan.  If the
Borrowers fail to make such payment when due, the Administrative Agent shall
notify each Lender and the Issuing Bank of the applicable LC Disbursement, the
payment then due from the Borrowers in respect thereof and such Lender’s
Applicable Percentage thereof.  Promptly
following receipt of such notice, each Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrowers, in
the same manner as is provided in Section 2.06 with respect to Loans made
by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to such payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. 
Promptly following receipt by the Administrative Agent of any payment
from the Borrowers pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank, then to
such Lenders and the Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Borrowers of their obligation to
reimburse such LC Disbursement.


 


(f)                                    Obligations
Absolute.  The Borrowers’ obligation
to reimburse LC Disbursements as provided in Section 2.05(e) shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank
under a Letter of Credit against presentation of a draft or other document that
does not comply with the terms of such Letter of Credit, or (iv) any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or


 


26

















 


equitable discharge of, or provide a right of
setoff against, the Company’s obligations hereunder.  None of the Lender Parties and their
respective Related Parties shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter of Credit or
any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided that
the foregoing shall not excuse the Issuing Bank from liability to the Company
to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Company to the extent
permitted by applicable law) suffered by the Company that are caused by the
Issuing Bank’s failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof.  The parties hereto expressly
agree that, in the absence of gross negligence or willful misconduct on the
part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination.  In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents do not strictly comply with the terms of such
Letter of Credit.


 


(g)                                 Disbursement
Procedures.  The Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit.  The Issuing Bank shall promptly notify the
Administrative Agent and the Company by telephone (confirmed by telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an
LC Disbursement pursuant thereto; provided that
any failure to give or delay in giving such notice shall not relieve the
Company of its obligation to reimburse the Issuing Bank and the Lenders with
respect to any such LC Disbursement.


 


(h)                                 Interim
Interest.  Unless the Company
reimburses an LC Disbursement in full on the date an LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including
the day on which such LC Disbursement is made to but excluding the day on which
the Company reimburses such LC Disbursement, at the rate per annum then
applicable to ABR Loans; provided that,
if the Company fails to reimburse such LC Disbursement when due pursuant to Section 2.05(e),
then Section 2.12(c) and Section 2.12(d) shall apply.  Interest accrued pursuant to this subsection
shall be for the account of the Issuing Bank, except that a pro rata share of
interest accrued on and after


 


27

















 


the day that any Lender pursuant to Section 2.05(e) shall
be for the account of such Lender.


 


(i)                                     Issuing
Bank.  The Issuing Bank may be
replaced at any time by written agreement among the Company, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank.  The Administrative Agent shall notify the
Lenders of any such replacement.  At the
time any such replacement becomes effective, the Company shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.11(b).  On and after the effective date of any such
replacement, (A) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (B) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or
to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. 
After an Issuing Bank is replaced, it will remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit issued by it before such
replacement, but shall not be required to issue additional Letters of Credit.


 


(j)                                     Cash
Collateralization.  If an Event of
Default shall occur and be continuing, on the Business Day that the Company
receives notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing more than 50% of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this subsection, the Borrowers shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to a Borrower described in
clause (h) or (i) of Article 7. 
Such deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrowers under this
Agreement.  The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account.  Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Borrowers’ risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on such
investments shall accumulate in such account. 
Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrowers for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated (but
subject to the consent of Lenders with LC Exposure  representing more than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrowers under this
Agreement.  If the Borrowers are required
to provide an amount of cash collateral


 


28

















 


hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Company within three Business Days after all Events of Default
(including such Event of Default) have been cured or waived.


 


Section 2.06.  Funding of Borrowings.  (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time (in
the case of fundings to an account in New York City), or 12:00 noon, local time
(in the case of fundings to an account in another jurisdiction), in each case
to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders; provided that (x) ABR
Loans shall be made available by 2:00 p.m. New York City or local time, as
the case may be, and (y) Swingline Loans shall be made as provided in Section 2.04.  The Administrative Agent will make such funds
available to the Company by promptly crediting the amounts so received, in like
funds, to an account of the Company maintained in New York City or London or in
the financial center of the country of the currency of such Loans and designated
by the Company in the applicable Borrowing Request; provided
that ABR Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e) shall be remitted by the Administrative
Agent to the Issuing Bank.


 


(b)                                 Unless
the Administrative Agent receives notice from a Lender before the proposed date
of any Borrowing that such Lender will not make its share of such Borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with Section 2.06(a) and
may, in reliance on such assumption, make available to the Company a
corresponding amount in the required currency. 
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 Borrowers 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 Company to but
excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, if such Borrowing is denominated in U.S. Dollars, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation, and if such Borrowing is denominated in an Alternative
Currency, a rate determined by the Administrative Agent to represent its cost
of overnight or short-term funds in the relevant currency (which determination
shall be conclusive absent manifest error), or (ii) in the case of the
Borrowers, the interest rate applicable to such Borrowing.  If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing.


 


Section 2.07.  Interest Elections.  (a) Each Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Borrowing, shall have an initial Interest Period as
specified in such


 


29

















 


Borrowing
Request.  Thereafter, the Company may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest
Periods therefor, all as provided in this Section.  The Company may elect different options with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. 
Notwithstanding the foregoing, the Company may not (i) elect to
convert the currency in which any Loans are denominated, (ii) elect an
Interest Period for Eurocurrency Loans that does not comply with Section 2.02(d),
(iii) elect to convert any ABR Loans to Eurocurrency Loans that would
result in the number of Eurocurrency Borrowings exceeding the maximum number of
Eurocurrency Borrowings permitted under Section 2.02(c), or (iv) elect
an Interest Period for Eurocurrency Loans unless the aggregate outstanding
principal amount of Eurocurrency Loans (including any Eurocurrency Loans in the
same currency made on the date that such Interest Period is to begin) to which
such Interest Period will apply complies with the requirements as to minimum
principal amount set forth in Section 2.02(c).  This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.


 


(b)                                 To
make an election pursuant to this Section, the Company shall notify the
Administrative Agent of such election in the form of an Interest Election
Request signed by the Company by the time that a Borrowing Request would be
required under Section 2.03 if the Company were requesting a Borrowing of
the Type resulting from such election to be made on the effective date of such
election; provided that in the case of a
conversion of Eurocurrency Loans to ABR Loans, notice of such election must be
delivered not later than 11:00 a.m., New York City time, three Business
Days before the end of the current Interest Period for such Eurocurrency
Loans.  Each such Interest Election
Request shall be irrevocable.


 


(c)                                  Each
Interest Election Request shall specify the following information in compliance
with Section 2.02 and Section 2.07(e):


 


(i)                  the Borrowing to
which such Interest Election Request applies and, if different options are
being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);


 


(ii)               the effective date
of the election made pursuant to such Interest Election Request, which shall be
a Business Day;


 


(iii)            whether the resulting
Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and


 


30














 


(iv)      if the resulting Borrowing is to be a
Eurocurrency Borrowing, the Interest Period to be applicable thereto after
giving effect to such election, which shall be a period contemplated by the
definition of “Interest Period”.


 


If an Interest Election Request
requests a Eurocurrency Borrowing but does not specify an Interest Period, then
the Company shall be deemed to have selected an Interest Period of one month’s
duration.


 


(d)                                 Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of
each resulting Borrowing.


 


(e)                                  If
the Company fails to deliver a timely Interest Election Request with respect to
a Eurocurrency Borrowing before the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end
of such Interest Period such Borrowing shall be continued as a Eurocurrency
Loan having an Interest Period of one month. 
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Company, then, so long as an Event of
Default is continuing, no outstanding ABR Borrowing may be converted to a
Eurocurrency Borrowing.


 


Section 2.08.  Termination and Reduction of
Commitments.  (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.


 


(b)                                 The
Company may at any time terminate, or from time to time reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 and (ii) the Company shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans
in accordance with Section 2.10, the sum of the Credit Exposures would
exceed the total Commitments.


 


(c)                                  The
Company shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least
three Business Days before the effective date of such termination or reduction,
specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Company pursuant
to this Section shall be irrevocable. 
Any termination or reduction of the Commitments shall be permanent and
will be made ratably among the Lenders in accordance with their respective
Commitments.


 


Section 2.09.  Repayment of Loans; Evidence
of Debt.  (a)  Each
Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Global Loan on the Maturity Date and (ii) to the Swingline Lender the then
unpaid principal


 


31

















 


amount of each
Swingline Loan on the earlier of the Maturity Date and the first date after
such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least two Business Days after such Swingline Loan is
made; provided that on each date that a
Global Borrowing is made, the Borrowers shall repay all Swingline Loans then
outstanding.


 


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


 


(c)                                  The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the currency, Class and Type thereof
and the Interest Period (if any) applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender’s share thereof.


 


(d)                                 The
entries made in the accounts maintained pursuant to Section 2.09(b) or
2.09(c) shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that
any failure by any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not affect the obligation of any Borrower to repay
the Loans in accordance with the terms of this Agreement.


 


(e)                                  Any
Lender may request that Loans of any Class made by it be evidenced by a
promissory note.  In such event, each
Borrower shall prepare, execute and deliver promptly to such Lender a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by
the Administrative Agent.  Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 10.04) be
represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).


 


Section 2.10.  Prepayment of Loans;
Collateralization of LC Exposure.  (a) Each
Borrower shall have the right at any time to prepay any Borrowing in whole or
in part, subject to the provisions of this Section.


 


(b)                                 If
the Administrative Agent notifies the Company at any time that the aggregate
Outstanding Amount of all Credit Exposure at such time exceeds an amount equal
to 105% of the Commitments then in effect, then, within seven Business Days
after receipt of such notice, the Borrowers shall prepay Loans or cash
collateralize LC Exposure in an aggregate amount sufficient to reduce such


 


32

















 


Outstanding Amount as of such date of payment
to an amount not to exceed 100% of the Commitments then in effect.  The Administrative Agent may, at any time and
from time to time after the initial deposit of such cash collateral, request
that additional cash collateral be provided in order to protect against the
results of further exchange rate fluctuations.


 


(c)                                  The
Company shall notify the Administrative Agent (and, in the case of prepayment
of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy)
of any prepayment hereunder (i) in the case of prepayment of a
Eurocurrency Borrowing denominated in U.S. Dollars, not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment, (ii) in
the case of a Eurocurrency Borrowing denominated in an Alternative Currency,
not later than 11:00 a.m., New York City time, three Business Days before
the date of payment, (iii) in the case of prepayment of an ABR Borrowing,
not later than 11:00 a.m., New York City time, on the date of prepayment,
or (iv) in the case of prepayment of a Swingline Loan, not later than
11:00 a.m., New York City time, on the date of prepayment.  Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid.  Promptly
following receipt of any such notice, the Administrative Agent shall advise the
Lenders of the contents thereof.  Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02.  Each prepayment of
a Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing.  Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.12.


 


Section 2.11.  Fees.  (a) The Borrowers agree to
pay to the Administrative Agent for the account of each Lender a facility fee,
which shall accrue at the Applicable Rate on the daily amount of the Commitment
of such Lender (whether used or unused) during the period from and including
the Effective Date to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues
to have any Credit Exposure after its Commitment terminates, then such facility
fee shall continue to accrue on the daily amount of such Lender’s Credit
Exposure from and including the date on which its Commitment terminates to but
excluding the date on which such Lender ceases to have any Credit
Exposure.  Accrued facility fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing on the
first such date to occur after the date hereof; provided
that any facility fees accruing after the date on which the Commitments
terminate shall be payable on demand. 
All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).


 


(b)                                 The
Borrowers agree to pay (i) to the Administrative Agent for the account of
each Lender a participation fee with respect to its participations in Letters
of Credit, which shall accrue at the same Applicable Rate used to determine the
interest rate applicable to Eurocurrency Loans on the average daily


 


33

















 


amount of such Lender’s LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender’s Commitment terminates and the date on
which such Lender ceases to have any LC Exposure, and (ii) to the Issuing
Bank a fronting fee, which shall accrue at the rate of 0.125% per annum on the
average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of termination
of the Commitments and the date on which there ceases to be any LC Exposure, as
well as the Issuing Bank’s standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder; provided that
no such fronting fee shall be payable to the Issuing Bank for any day on which
it and its Affiliates are the only Lenders. 
Participation fees and fronting fees accrued through and including the
last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Commitments
terminate and any such fees accruing after the date on which the Commitments
terminate shall be payable on demand. 
Any other fees payable to the Issuing Bank pursuant to this subsection
shall be payable within 10 days after demand. 
All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).


 


(c)                                  The
Borrowers agree to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon in writing by
the Company and the Administrative Agent.


 


(d)                                 All
fees payable hereunder shall be paid on the dates due, in immediately available
funds in U.S. Dollars, to the Administrative Agent (or to the Issuing Bank, in
the case of fees payable to it) for distribution, in the case of facility fees
and participation fees, to the Lenders. 
Fees paid shall not be refundable under any circumstances.


 


Section 2.12.  Interest.  (a) The Loans comprising each
ABR Borrowing (including each Swingline Loan) shall bear interest at the
Alternate Base Rate.


 


(b)                                 The
Loans comprising each Eurocurrency Borrowing shall bear interest at the
Eurocurrency Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate plus (in the case of a Eurocurrency Loan of any Lender which is
lent from a lending office in the United Kingdom or a Participating Member
State) the Mandatory Cost.


 


(c)                                  Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by a Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per


 


34

















 


annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the 
rate otherwise applicable to such Loan as provided in the preceding
subsections of this Section or (ii) in the case of any other amount,
2% plus the rate applicable to ABR Loans.


 


(d)                                 Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and upon termination of the Commitments; provided
that (i) interest accrued pursuant to Section 2.12(c) shall be payable
on demand, (ii) upon any repayment or prepayment of any Loan (other than a
prepayment of an ABR Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) upon any conversion of any
Eurocurrency Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.


 


(e)                                  All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and interest in
respect of Loans denominated in Alternative Currencies as to which market
practice differs from the foregoing shall be computed in accordance with such
market practice, and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).  The applicable Alternate Base Rate or
Eurocurrency Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


Section 2.13.  Alternate Rate of
Interest.  If before the
commencement of any Interest Period for a Eurocurrency Borrowing:


 


(a)                                  the Administrative
Agent determines (which determination shall be conclusive absent manifest
error) that adequate and reasonable means do not exist for ascertaining the
Eurocurrency Rate for such Interest Period;


 


(b)                                 the Administrative
Agent is advised by the Required Lenders that the Eurocurrency Rate for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
of making or maintaining such Loans for such Interest Period; or


 


(c)                                  the Administrative
Agent determines (which determination shall be conclusive absent manifest
error) that deposits in the principal amounts of the Loans comprising such
Borrowing and in the currency in which such Loans are to be denominated are not
generally available in the relevant market;


 


then the
Administrative Agent shall give notice thereof to the Company and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until


 


35

















 


the
Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any request
by a Borrower for a Eurocurrency Borrowing of the affected currency or a
conversion to or continuation of a Eurocurrency Borrowing in the affected
currency, pursuant to Section 2.03 or 2.07, shall be deemed rescinded, and
(ii) if any Borrowing Request requests a Eurocurrency Borrowing
denominated in U.S. Dollars, such Borrowing shall be made as an ABR Borrowing.


 


Section 2.14.  Increased Costs.  (a) If any Change in Law
shall:


 


(i)             impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (except (A) any
reserve requirement contemplated by Section 2.14(e) and (B) the
requirements of the Bank of England and the Financial Services Authority or the
European Central Bank reflected in the Mandatory Cost, other than as set forth
below) or Issuing Bank;


 


(ii)          result in the failure of the Mandatory Cost,
as calculated hereunder, to represent the cost to any Lender of complying with
the requirements of the Bank of England and/or the Financial Services Authority
or the European Central Bank in relation to its making, funding or maintaining
Eurocurrency Loans; or


 


(iii)       impose on any Lender or the Issuing Bank or the
London interbank market any other condition affecting this Agreement or
Eurocurrency Loans made by such Lender or any Letter of Credit or participation
therein;


 


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 such Loan) or
to increase the cost to such Lender or the Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder (whether of
principal, interest or otherwise), then the Borrowers will pay to such Lender
or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate it for such additional costs incurred or reduction suffered.


 


(b)                                 If
any Lender or the Issuing Bank determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of
return on such Lender’s or the Issuing Bank’s capital or on the capital of such
Lender’s or the Issuing Bank’s holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lender’s or the
Issuing Bank’s holding company could have achieved but for such Change in Law
(taking


 


36

















 


into consideration such Lender’s or the
Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s
holding company with respect to capital adequacy), then from time to time the
Borrowers will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender’s or the Issuing Bank’s holding company for any such reduction
suffered.


 


(c)                                  A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company,
as the case may be, as specified in Section 2.14(a) or 2.14(b) shall
be delivered to the Company and shall be conclusive absent manifest error.  The Borrowers shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


(d)                                 Failure
or delay by any Lender or the Issuing Bank to demand compensation pursuant to
this Section shall not constitute a waiver of such Lender’s or the Issuing
Bank’s right to demand such compensation; provided that
the Borrowers shall not be required to compensate a Lender or the Issuing Bank
pursuant to this Section for any increased costs or reductions incurred
more than 180 days before the date that such Lender or the Issuing Bank, as the
case may be, notifies the Company of the Change in Law giving rise to such
increased cost or reduction and of such Lender’s or the Issuing Bank’s
intention to claim compensation therefor; provided
further that, if the Change in Law giving rise to such increased cost or
reduction is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.


 


(e)                                  To
the extent not paid as Mandatory Cost, the Borrowers shall pay to each Lender, (i) as
long as such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as “Eurocurrency liabilities”),
additional interest on the unpaid principal amount of each Eurocurrency Loan
equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall
be conclusive), and (ii) as long as such Lender shall be required to
comply with any reserve ratio requirement or analogous requirement of any other
central banking or financial regulatory authority imposed in respect of the
maintenance of the Commitments or the funding of the Eurocurrency Loans, such
additional costs (expressed as a percentage per annum and rounded upwards, if
necessary, to the nearest five decimal places) equal to the actual costs
allocated to such Commitment or Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which in each
case shall be due and payable on each date on which interest is payable on such
Loan, provided the Company shall have received
at least 10 days’ prior notice (with a copy to the Administrative Agent) of
such additional interest or costs from such Lender.  If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional interest or costs
shall be due and payable 10 days from receipt of such notice.


 


37

















 


(f)                                    This
Section shall not apply to matters covered by Section 2.16 relating
to Taxes.


 


Section 2.15.  Break Funding Payments.  In the event of (a) the
payment of any principal of any Eurocurrency Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified
in any notice delivered pursuant hereto (regardless of whether such notice may
be revoked under Section 2.10(c) and is revoked in accordance
therewith) or (d) the assignment of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto as a result of a request
by the Company pursuant to Section 2.18, then, in any such event, the
Borrowers shall compensate each Lender for the loss, cost and expense directly
attributable to such event.  Such loss,
cost and expense to any Lender shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (i) the amount of interest
which would have accrued on the principal amount of such Loan had such event
not occurred, at the Eurocurrency Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for deposits in
the relevant currency of a comparable amount and period from other banks in the
relevant market.  A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrowers and
shall be conclusive absent manifest error. 
The Borrowers shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


Section 2.16.  Taxes.  (a) Any and all payments by
or on account of any obligation of any Credit Party under the Loan Documents
shall be made free and clear of and without deduction or withholding for any
Indemnified Taxes or Other Taxes; provided that
if a Credit Party shall be required to deduct or withhold any Indemnified Taxes
or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions and
withholdings (including, for the avoidance of doubt, deductions and
withholdings applicable to additional sums payable under this Section) each
relevant Lender Party receives an amount equal to the sum it would have
received had no such deductions or withholdings been made, (ii) such
Credit Party shall make such deductions and withholdings and (iii) such
Credit Party shall pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law.


 


38














 


(b)                                 Without limiting the provisions of subsection
(a) above, the Credit Parties shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.


 


(c)                                  Without limiting the provisions of subsection
(a) above, if a Credit Party fails to pay when due any Indemnified Taxes
or Other Taxes that are payable by such Credit Party, such Credit Party shall
indemnify each Lender Party, within 10 days after written demand therefor, for
the full amount of any penalties, interest and reasonable expenses arising out
of or in connection with any such failure. 
A certificate as to the amount of such payment or liability delivered to
such Credit Party by a Lender Party on its own behalf, or by the Administrative
Agent on behalf of a Lender Party, shall be conclusive absent manifest error.


 


(d)                                 As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Credit Party to a Governmental
Authority, such Credit Party shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.


 


(e)                                  Any Lender that is entitled to an exemption
from or reduction of withholding tax under the law of a Relevant Jurisdiction,
or any treaty to which such jurisdiction is a party, or under any law or treaty
of any other jurisdiction in which payments may be made by a Borrower pursuant to
this Agreement, with respect to payments under this Agreement, shall deliver to
the Company (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Company as will permit such payments to be made without withholding or at a
reduced rate.  Each Lender shall promptly
(i) notify the Administrative Agent of any change in circumstances which
would modify or render invalid any such 
claimed exemption or reduction, and (ii) take such steps as shall
not be materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including those set forth in Section 2.18)
to avoid any requirement of applicable laws of any such jurisdiction that a
Credit Party make any deduction or withholding for taxes from amounts payable
to such Lender.


 


(f)                                    If a Lender Party determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by a Credit Party or with respect to which a
Credit Party has paid additional amounts pursuant to this Section that in
the good faith judgment of such Lender Party is allocable to such indemnity or additional
amounts and is not subject to return, reassessment or other repayment, it shall
pay to such Credit Party an amount equal to such refund (but only to the extent
of indemnity payments made, or additional amounts paid, by such Credit Party
under this Section with respect to the Taxes or Other Taxes giving rise to
such refund), net


 


39

















 


of such Lender Party’s
out-of-pocket expenses and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund); provided, that such Credit Party, upon
the request of such Lender Party, agrees to repay the amount paid over to such
Credit Party (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to such Lender Party in the event the such
Lender Party is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require any Lender Party to make
available its tax returns (or any other information relating to its taxes which
it deems confidential) to any Credit Party or any other Person.


 


Section 2.17.  Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.  (a) Each Borrower shall make
each payment required to be made by it under the Loan Documents (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts
payable under Section 2.14, 2.15 or 2.16, or otherwise) before the time
expressly required under the relevant Loan Document for such payment (or, if no
such time is expressly required, before 12:00 noon, local time at the place of
payment), on the date when due, in immediately available funds, without set off
or counterclaim.  Any amount received
after such time on any day may, in the discretion of the Administrative Agent,
be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. 
All such payments shall be made to such account of the Administrative
Agent as the Administrative Agent shall specify by notice to the Company,
except payments to be made directly to the Issuing Bank or the Swingline Lender
as expressly provided herein and except that payments pursuant to Sections
2.14, 2.15, 2.16 and 10.03 shall be made directly to the Persons entitled thereto
and payments pursuant to other Loan Documents shall be made to the Persons
specified therein.  The Administrative
Agent shall distribute any such payment received by it for the account of any
other Person to the appropriate recipient promptly following receipt
thereof.  If any payment under any Loan
Document shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, if such payment
accrues interest, interest thereon shall be payable for the period of such
extension.  All payments hereunder of
principal and interest in respect of any Loan (or of any breakage indemnity or
payment under Section 2.15 in respect of any Loan) shall be made in the
currency of such Loan; all other payments under each Loan Document shall be
made in U.S. Dollars.


 


(b)                                 If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts
of principal, unreimbursed LC Disbursements, interest and fees then due hereunder,
such funds shall be applied (i) first,
to pay ratably any unpaid fees, costs and expenses of the Administrative Agent,
(ii) second, to pay interest
and fees then due hereunder, ratably among the other Lender Parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (iii) third, to
pay principal and unreimbursed LC Disbursements then due hereunder, ratably
among the parties


 


40

















 


entitled thereto in accordance
with the amounts of principal and unreimbursed LC Disbursements then due to
such parties.


 


(c)                                  If any Lender shall, by exercising any right
of set off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Global Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Global Loans or
participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other applicable Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Global Loans, LC Disbursements or Swingline Loans
of other Lenders to the extent necessary 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
Global Loans and participations in LC Disbursements and Swingline Loans; provided that (x) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered,  such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (y) the provisions of this
subsection shall not be construed to apply to any payment made by any Borrower
pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or participations in LC Disbursements to
any assignee or participant, other than to any Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this subsection shall apply).  Each 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 such Borrower rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation.


 


(d)                                 Unless the Administrative Agent shall have
received notice from the Company prior to the date on which any payment is due
to the Administrative Agent for the account of one or more Lender Parties
hereunder that such payment will not be made, the Administrative Agent may
assume that such payment has been made on such date in accordance herewith and
may, in reliance upon such assumption, distribute to each relevant Lender Party
the amount due.  In such event, if such
payment has not in fact been made, then each of Lender Party severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender Party 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, if such payment is denominated in
U.S. Dollars, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation, and, if such payment is denominated in an Alternative
Currency, a rate determined by the Administrative Agent to represent


 


41

















 


its cost of overnight or
short-term funds in the relevant currency (which determination shall be
conclusive absent manifest error).


 


(e)                                  If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.04(c), 2.05(d), 2.05(e),
2.06(b), 2.17(d) or 10.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.


 


Section 2.18.  Mitigation
Obligations; Replacement of Lenders.  (a) If
any Lender requests compensation under Section 2.14, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then
such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, 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.  The Borrowers agree to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


(b)                                 If any Lender requests compensation under Section 2.14,
or if any Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, or if a
Lender does not consent to a proposed amendment, waiver, consent or release
with respect to any Loan Document that requires the consent of each Lender and
has been approved by the Required Lenders, then the Company may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign, without recourse (in accordance with and subject
to the restrictions contained in Section 10.04), all its interests, rights
and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the
Company shall have received the prior written consent of the Administrative
Agent and the Issuing Bank, which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrowers (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.14 or payments required to be made
pursuant to Section 2.16, such assignment will result in a material
reduction in such compensation or payments. 
A Lender shall not be required to make any such


 


42

















 


assignment if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Company to require such assignment cease to apply.  At any time prior to the effectiveness of
such assignment, the Company, in its sole discretion, may revoke the notice
requiring such assignment.


 


Section 2.19.  Additional Borrowers.  On or after the Effective Date,
the Company may designate any General Partner as a Co-Borrower by delivery to
the Administrative Agent of a Co-Borrower Agreement executed by such General
Partner and the Company, and upon such delivery (and the delivery in connection
therewith of such favorable written opinions of counsel and documents and
certificates as the Administrative Agent may reasonably require) such General
Partner shall for all purposes of this Agreement be a Co-Borrower and a party
to this Agreement until the Company shall have executed and delivered to the
Administrative Agent a Co-Borrower Termination with respect to such General
Partner, whereupon such General Partner shall cease to be a Co-Borrower and a
party to this Agreement.  Notwithstanding
the preceding sentence, no Co-Borrower Termination will become effective as to
any General Partner at a time when any principal of or interest on any Loan
shall be outstanding hereunder.


 


In lieu of the foregoing
arrangements, if the Company has certified to the Lender Parties that both such
arrangements and the General Partner Guaranty would be materially
disadvantageous to the Company in connection with the initial public offering
of common units of KKR & Co. L.P. (the “IPO”), the Company may request that the parties to this
Agreement consider in good faith another arrangement with the same effect as
the foregoing arrangements or the General Partner Guaranty with respect to the
General Partners in connection with the IPO.


 


ARTICLE 3

REPRESENTATIONS AND WARRANTIES


 


The Company represents and
warrants to the Lender Parties that:


 


Section 3.01. 
Organization; Powers.  Each
of the Borrower Group Companies is duly organized, validly existing and in good
standing (if applicable) under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect,
is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required.


 


Section 3.02. 
Authorization; Enforceability.  The
Transactions to be entered into by each Credit Party are within its
organizational powers and have been duly authorized by all necessary
organizational action.  This Agreement
has been duly executed and delivered by the Company and constitutes, and each
other Loan Document to which any Credit Party is to be a party, when executed
and


 


43

















 


delivered by such Credit
Party, will constitute, a legal, valid and binding obligation of the Company or
such Credit Party, as the case may be, in each case enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.


 


Section 3.03.  Governmental
Approvals; No Conflicts.  The
Transactions (a) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, except (i) such
as have been obtained or made and are in full force and effect or (ii) where
the failure to obtain or make them could not reasonably be expected to have a
Material Adverse Effect, (b) will not violate (i) the Constituent
Documents of any Borrower Group Company or (ii) except where such
violation could not reasonably be expected to have a Material Adverse Effect,
any law or regulation applicable to any Borrower Group Company or any order of
any Governmental Authority, (c) will not violate or result in a default
under any indenture, agreement or other instrument binding upon any Borrower
Group Company or its assets, or give rise to a right thereunder to require any
Borrower Group Company to make any payment, and (d) will not result in the
creation or imposition of any Lien on any asset of any Borrower Group
Company.  No exchange control law or
regulation restricts any Credit Party from complying with its obligations, as
borrower or guarantor, in respect of any Obligation under any Loan Document.


 


Section 3.04.  Financial
Condition; No Material Adverse Change.  (a) The
Company has heretofore furnished to the Administrative Agent statements of
assets, liabilities and partners’ capital; revenues and expenses; changes in
partners’ capital; and cash flows of the Company (i) as of and for the
fiscal year ended December 31, 2006, and (ii) as of and for the nine
months ended September 30, 2007, in each case certified by its chief
financial officer.  Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Company as of such dates and for
such periods on an unconsolidated basis and in accordance with GAAP, subject to
year end adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.


 


(b)                                 Except as disclosed in the financial
statements referred to above or the notes thereto and except for the Disclosed
Matters, after giving effect to the Transactions, none of the Borrower Group
Companies has, as of the Effective Date, any liabilities and obligations, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


(c)                                  Since December 31, 2006, there has been
no material adverse change in the business, results of operations or financial
condition of the Credit Parties, taken as a whole.


 


44

















 


Section 3.05.  Litigation
and Environmental Matters.  (a) There
are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Company,
threatened against or affecting any Borrower Group Company (i) as to which
there is a reasonable possibility of adverse determinations that, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect
(other than the Disclosed Matters) or (ii) that involve any of the Loan
Documents or the Transactions.


 


(b)                                 Except for any matters that, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, no Borrower Group Company (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) is subject to
any Environmental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.


 


Section 3.06.  Compliance
with Laws.  Each Borrower
Group Company is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property, except where the
failure to do so, in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect.


 


Section 3.07.  Investment
Company Status; Regulatory Restrictions on Borrowing.  No Credit Party is an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940.  No Credit Party is subject to regulation
under any law, treaty, rule or regulation or determination of an
arbitrator or court or other Governmental Authority (other than Regulations T,
U and X of the Board) which limits its ability to incur any Indebtedness under
this Agreement or any promissory note issued pursuant hereto.


 


Section 3.08.  Taxes.  Each Borrower Group Company has
timely filed or caused to be filed all Tax returns and reports required to have
been filed by it and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the relevant Borrower Group Company
has set aside on its books adequate reserves in accordance with GAAP or (b) to
the extent that failures to do so, in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.  There is no proposed tax assessment against
any Borrower Group Company that, if made, could reasonably be expected to have
a Material Adverse Effect.


 


Section 3.09.  ERISA.  (a) No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all
other ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect.  Each Borrower Group Company and its


 


45

















 


ERISA Affiliates are in
compliance with those provisions of ERISA and the regulations and published
interpretations thereunder which are applicable to it, except where
noncompliance could not reasonably be expected to result in a Material Adverse
Effect.


 


(b)                                 Each International Plan has been maintained
in compliance with its terms and with the requirements prescribed by applicable
law (including any special provisions relating to qualified plans where such
International Plan was intended to so qualify) and has been maintained in good
standing with the applicable regulatory authorities, except where noncompliance
would not result in a Material Adverse Effect. 
No unfunded liabilities, determined on the basis of actuarial
assumptions which are reasonable in the aggregate, exist under all of the
International Plans in the aggregate that could reasonably be expected to
result in a Material Adverse Effect.


 


(c)                                  No Plan or International Plan is a
Multiemployer Plan and no Plan or International Plan is a multiple employer
welfare arrangement as defined in Section 3(40) of ERISA which is subject
to ERISA.


 


Section 3.10. 
Disclosure.  The
Company has disclosed to the Lenders all agreements, instruments and corporate
or other restrictions to which any of the Borrower Group Companies is subject,
and all other matters known to it, in each case as of the Effective Date, that,
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect.  None of the other reports,
financial statements, certificates or other information furnished by or on
behalf of any Credit Party to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or supplemented by other
information so furnished), when taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided
that, with respect to any projected financial information, the Company
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.


 


ARTICLE 4

CONDITIONS


 


Section 4.01.  Effective
Date.  The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.02):


 


(a)                                  The Administrative Agent (or its counsel)
shall have received from each party hereto either (i) a counterpart of
this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the


 


46

















 


Administrative Agent (which
may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.


 


(b)                                 The Administrative Agent shall have received
written opinions (addressed to the Administrative Agent and the Lenders party
to this Agreement as of the Effective Date and dated the Effective Date) of
each of Simpson Thacher & Bartlett LLP, special counsel to the Company
and the Guarantors, Maples and Calder, special counsel to the Guarantors,
Gowlings Lafleur Henderson LLP, special counsel to the Guarantors, and David J.
Sorkin, general counsel of the Company, in form and substance reasonably
satisfactory to the Administrative Agent and covering such matters relating to
the Credit Parties, the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request. 
The Company hereby requests such counsel to deliver such opinions.


 


(c)                                  The Administrative Agent shall have received
such documents and certificates as the Administrative Agent may reasonably
request relating to the organization, existence and good standing of each
Credit Party, the authorization of the Transactions and any other legal matters
relating to the Credit Parties, the Loan Documents or the Transactions, all in
form and substance satisfactory to the Administrative Agent.


 


(d)                                 The Administrative Agent shall have received
a certificate, dated the Effective Date and signed by the chief financial
officer of the Company, confirming compliance with the conditions set forth in
clauses (a) and (b) of Section 4.02.


 


(e)                                  The Administrative Agent shall have received
all fees and other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all out of
pocket expenses required to be reimbursed or paid by any Credit Party
hereunder.


 


(f)                                    The Administrative Agent shall have received
from each Guarantor either (i) a counterpart of the General Partner
Guaranty duly executed and delivered on behalf of such Guarantor or (ii) 
written evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page) that such Guarantor has
signed a counterpart of the General Partner Guaranty.


 


(g)                                 The Lenders shall have received, to the
extent requested, on or before the date which is five Business Days prior to
the Effective Date, all documentation and other information required by bank
regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations
including the USA PATRIOT Act.


 


47

















 


The Administrative Agent
shall notify the Company and the Lenders of the Effective Date, and such notice
shall be conclusive and binding. 
Notwithstanding the foregoing, the obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or
waived pursuant to Section 10.02) at or prior to 3:00 p.m., New York
City time, on March 1, 2008 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).


 


Section 4.02.  Each Credit
Event.  The obligation of each
Lender to make any Loan, and of the Issuing Bank to issue, amend, renew or
extend any Letter of Credit, is subject to the satisfaction of the following
conditions:


 


(a)                                  The representations and warranties of each
Credit Party set forth in the Loan Documents shall be true and correct on and
as of the date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable (except for the first
sentence of Section 3.10, which representation and warranty shall have
been true and correct as of the Effective Date).


 


(b)                                 At the time of and immediately after giving
effect to such Borrowing or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, no Default shall have occurred and be
continuing.


 


(c)                                  In the case of a Borrowing to be denominated
in an Alternative Currency, there shall not have occurred any change in
national or international financial, political or economic conditions or
currency exchange rates or exchange controls which in the reasonable opinion of
the Administrative Agent and the Required Lenders would make it impracticable
for such Borrowing to be denominated in the relevant Alternative Currency.


 


Each Borrowing and each
issuance, amendment, renewal or extension of a Letter of Credit shall be deemed
to constitute a representation and warranty by the Borrowers, on the date
thereof as to the matters specified in clauses (a) and (b) of this
Section.


 


ARTICLE 5

AFFIRMATIVE COVENANTS


 


Until the Commitments have
expired or terminated and the principal of and interest on each Loan and all fees
payable hereunder have been paid in full and all Letters of Credit have expired
or been cancelled and all LC Disbursements have been reimbursed, the Company
covenants and agrees with the Lenders that:


 


48














 


Section 5.01.  Financial
Statements; Other Information.  The
Company will furnish to the Administrative Agent:


 


(a)                                  as
soon as available and in any event within 120 days after the end of each fiscal
year of the Company, the Company’s statements of assets, liabilities and
partners’ capital; revenues and expenses; changes in partners’ capital; and
cash flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, in each case,
certified by the chief financial officer of the Company as presenting fairly in
all material respects the financial condition and results of operations of the
Company on an unconsolidated basis in accordance with GAAP consistently applied
(except with respect to any changes made as a result of changes to GAAP);


 


(b)                                 as
soon as available and in any event within 120 days after the end of each fiscal
year of each Investment Fund, (i) a summary of investment valuation
information for such Investment Fund, (ii) a schedule of outstanding
Indebtedness of such Investment Fund and its General Partner and (iii) a
schedule of cash distributions to its General Partner, in each case, as of the
end of and for such fiscal year;


 


(c)                                  as
soon as available and in any event within 60 days after the end of each of the
first three fiscal quarters of each fiscal year of the Company, the Company’s
statements of assets, liabilities and partners’ capital; revenues and expenses;
changes in partners’ capital; and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting forth
in each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the statement of assets, liabilities and
partners’ capital, as of the end of) the previous fiscal year, all certified by
the chief financial officer of the Company as presenting fairly in all material
respects the financial condition and results of operations of the Company on an
unconsolidated basis in accordance with GAAP consistently applied (except with
respect to any changes made as a result of changes to GAAP), subject to normal
year-end audit adjustments and the absence of footnotes;


 


(d)                                 as
soon as available and in any event within 60 days after the end of the first
three fiscal quarters of each fiscal year of each Investment Fund, (i) a
summary of investment valuation information for such Investment Fund, (ii) a
schedule of outstanding Indebtedness of such Investment Fund and its General
Partner and (iii) a schedule of cash distributions to its General Partner,
in each case, as of the end of and for such fiscal quarter;


 


(e)                                  concurrently
with any delivery of financial statements or other information under clause
(a), (b), (c) or (d) above, a certificate of the chief financial
officer of the Company (i) certifying as to whether a 


 


49

















 


Default has
occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with Section 6.06,
(iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of the financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate and (iv) attaching
the valuation report of Duff & Phelps LLC (or any other third-party
valuation service) relating to the assets of each Investment Fund for such
period; provided that the Company’s
obligation to provide any third-party valuation information shall be subject to
any distribution restrictions imposed by the preparer of such report, and if
(after a good faith effort by the Company to obtain a waiver of such
restrictions) such restrictions are not waived and prohibit the Company from
providing such report, the chief financial officer of the Company shall certify
instead that the valuations set forth in the investment valuation summaries
have been made on a basis consistent with the procedures used in preparing the
summaries delivered to the Administrative Agent prior to the Effective Date;


 


(f)                                    within
five Business Days of furnishing the same to the limited partners of each
Investment Fund, (i) quarterly valuation letters prepared for the limited
partners of such Investment Fund, (ii) audited annual financial statements
of such Investment Fund for the prior fiscal year and (iii) any other
material information that is furnished to all limited partners of such
Investment Fund and is not then otherwise publicly available;


 


(g)                                 as
soon as available and in any event not later than October 15 of each
fiscal year, tax basis financial statements of each General Partner for the
prior fiscal year; and


 


(h)                                 promptly
following any request therefor, such other information regarding the
operations, business affairs and financial condition of any Borrower Group
Company, or compliance with the terms of any Loan Document, as the
Administrative Agent (on behalf of the Required Lenders) may reasonably
request.


 


Documents
required to be delivered pursuant to Section 5.01 may be delivered
electronically and, if so delivered, shall be deemed to have been delivered on
the date on which such documents are posted on the Company’s behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that the Company shall notify the Administrative
Agent (by telecopier or electronic mail) of the posting of any such documents
and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such
documents. The 


 


50

















 


Administrative
Agent shall have no obligation to request the delivery or to maintain copies of
the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Company with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.


 


The Company
hereby acknowledges that (a) the Administrative Agent may make available to
the Lenders and the Issuing Bank materials and/or information provided by or on
behalf of the Company hereunder (collectively, “Company Materials”) by posting the Company Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with
respect to the Credit Parties or their securities) (each, a “Public Lender”).  The Company hereby agrees that (w) all
Company Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Company Materials “PUBLIC,” the Company shall be deemed to have
authorized the Administrative Agent, the Issuing Bank and the Lenders to treat
such Company Materials as not containing any material non-public information
with respect to the Company or its securities for purposes of United States
Federal and state securities laws (provided,
however, that to the extent such Company Materials constitute Information, they
shall be treated as set forth in Section 10.12); (y) all Company
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (z) the Administrative
Agent shall be entitled to treat any Company Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not designated “Public
Investor.”  Notwithstanding the
foregoing, the Company shall be under no obligation to mark any Company
Materials “PUBLIC.”


 


Section 5.02.  Notices of
Material Events.  The Company
will furnish to the Administrative Agent and each Lender prompt written notice
of the following:


 


(a)                                  the
occurrence of any Default;


 


(b)                                 the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting any Borrower Group
Company or any Affiliate thereof that could reasonably be expected to be
adversely determined and, if so determined, could reasonably be expected to
result in a Material Adverse Effect; and


 


(c)                                  any
other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.


 


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Each notice
delivered under this Section shall be accompanied by a statement of the
chief financial officer of the Company setting forth the details of the event
or development requiring such notice and any action taken or proposed to be
taken with respect thereto.


 


Section 5.03.  Existence;
Conduct of Business.  Each
Borrower Group Company will do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.


 


Section 5.04.  Payment of
Taxes.  Each Borrower Group
Company will pay its obligations that do not constitute Indebtedness, including
Tax liabilities before the same shall become delinquent or in default and
before penalties accrue thereon, except where (a) (i) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (ii) such
Borrower Group Company has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, and (iii) such contest
effectively suspends collection of the contested obligation and the enforcement
of any Lien securing such obligation or (b) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.


 


Section 5.05.  Maintenance
of Properties; Insurance.  Each
Borrower Group Company will (a) keep and maintain all property material to
the conduct of its business in good working order and condition, ordinary wear
and tear excepted, and (b) maintain insurance in such amounts and against
such risks as, in the good faith judgment of the management of such Borrower
Group Company, is reasonable and prudent to be maintained by companies of the
same size and nature of business operating in the same or similar locations.


 


Section 5.06.  Books and
Records; Inspection Rights.  Each
Borrower Group Company will keep books of record and account with respect to its
assets and business.  Each Borrower Group
Company will permit any representatives designated by the Administrative Agent
or any Lender, 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, all at such
reasonable times and as often as reasonably requested; provided that (x) excluding any such
visits and inspections during the continuation of an Event of Default, (i) only
the Administrative Agent on behalf of the Required Lenders may exercise the
rights of the Administrative Agent and the Lenders under this Section, (ii) the
Administrative Agent may not exercise such rights more than two times in any
calendar year and (iii) only one such visit shall be at the applicable
Borrower Group Company’s expense, and (y) when an Event of Default exists,
the Administrative Agent or any representative of the Required Lenders (or any
of its respective representatives or independent 


 


52

















 


contractors)
may do any of the foregoing at the expense of the Company at any time during
normal business hours and upon reasonable advance notice.


 


Section 5.07.  Compliance
with Laws.  Each Borrower Group
Company will comply with all laws, rules, regulations and orders of any
Governmental Authority (including, without limitation, Environmental Laws)
applicable to it or its property, except where failures to do so, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


 


Section 5.08.  Use of
Proceeds and Letters of Credit.  The
proceeds of the Loans and Letters of Credit will be used for general corporate
purposes; provided that no part
of the proceeds of any Loan, and no Letter of Credit, will be used, whether
directly or indirectly, (i) for any purpose that entails a violation of
Regulation U or X of the Board, (ii) to make investments in KKR Financial
Holdings LLC in excess of $100,000,000 in the aggregate during the term of this
Agreement or (iii) to pay employee compensation, executive bonuses or cash
distributions to partners of any Borrower or its Affiliates.


 


Section 5.09.  Additional
General Partner Guarantors or Co-Borrowers. 
If any additional General Partner is formed or acquired, or
if any Person becomes a General Partner, in each case, after the Effective
Date, the Company will, within 30 days after such General Partner is formed or
acquired or such Person becomes a General Partner, as applicable, notify the
Administrative Agent and the Lenders thereof and cause such General Partner to
become a Guarantor or Co-Borrower and, in connection therewith, to deliver such
favorable written opinions of counsel and documents and certificates as the
Administrative Agent may reasonably require.


 


ARTICLE 6

NEGATIVE COVENANTS


 


Until the
Commitments have expired or terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full and all Letters
of Credit have expired or been cancelled and all LC Disbursements have been
reimbursed, the Company covenants and agrees with the Lenders that:


 


Section 6.01. 
Indebtedness.  (a) The
Company will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Indebtedness, except:


 


(i)                                     Indebtedness
created under the Loan Documents;


 


(ii)                                  Indebtedness
existing on the date hereof and set forth in Schedule 6.01, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof;


 


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(iii)                               Indebtedness
incurred by the Subsidiaries in connection with broker-dealer and related
underwriting and financing activities;


 


(iv)                              Indebtedness
incurred by the Subsidiaries in connection with ordinary course investment
activity;


 


(v)                                 Indebtedness
of any Subsidiary assumed in connection with the acquisition of any assets or
secured by a Lien on any assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided that the aggregate principal amount of Indebtedness
permitted by this clause (v) shall not exceed $25,000,000 at any time
outstanding;


 


(vi)                              Indebtedness
of any Person that becomes a Subsidiary after the date hereof;


 


(vii)                           Indebtedness
in respect of interest rate and currency Swap Contracts entered into in the
ordinary course of business for non-speculative hedging purposes and not as
financing;


 


(viii)                        other
Indebtedness of Subsidiaries in an aggregate principal amount not exceeding
$25,000,000 at any time outstanding; and


 


(ix)                                other
unsecured Indebtedness, provided
that each of the following conditions shall have been satisfied:


 


(A)                              no Default shall have
occurred and be continuing or would result therefrom;


 


(B)                                in the case of any such
Indebtedness of the Company which is a credit facility (whether revolving or
term) evidenced by a loan agreement, credit agreement or similar document or
promissory note, the terms and conditions of the documents to be entered into
in connection therewith shall not contain restrictions or conditions
(including, without limitation, representations and warranties, covenants or
events of default) that are materially more restrictive than the corresponding
restrictions and conditions, or pricing that is higher for the remaining term
of this Agreement than the pricing, set forth in the Loan Documents, unless the
Company concurrently notifies the Administrative Agent thereof and incorporates
herein such more restrictive terms or higher pricing; and


 


(C)                                at the time of the
execution of the documents pursuant to which such Indebtedness is to be
incurred, the Company shall have delivered to the Administrative Agent, an
officer’s certificate signed by a Financial Officer certifying that 


 


54

















 


each of the
conditions required to be satisfied in order to incur such Indebtedness in
accordance with this Section 6.01(a)(ix)shall have been satisfied and the
Company shall be in pro forma compliance with the financial covenant set forth
in Section 6.06 through the Maturity Date after giving pro forma effect to
such incurrence.


 


In the case of
clause (ix)(B) above, if the Administrative Agent at the time so elects by
notice to the Company and the Lenders, the incorporation of more restrictive
terms or higher pricing shall be deemed to occur automatically without any
further action or the execution of any additional document by any of the
parties to this Agreement. If the Administrative Agent does not elect to effect
such an automatic incorporation, the Administrative Agent shall promptly tender
to the Company for execution by it an amendment (executed by the Administrative
Agent) incorporating such more restrictive terms or higher pricing and shall
promptly deliver a copy of such amendment to the Lenders.


 


(b)                                 No
Credit Party (other than the Company) will create, incur, assume or permit to
exist any Indebtedness except (i) Indebtedness created under the Loan
Documents, (ii) Indebtedness not to exceed $50,000,000 in the aggregate
for all Credit Parties (other than the Company), and (iii) unsecured
Indebtedness with a term of no more than 60 days incurred by a Credit Party
other than the Company as bridge financing for equity investments in the
private equity fund of which such Credit Party is the general partner, if such
bridge financing is guaranteed by such private equity fund and/or its limited
partners.


 


Section 6.02.  Liens.  (a) The Company will not, and
will not permit any Subsidiary to, create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:


 


(i)                                     Permitted
Encumbrances;


 


(ii)                                  any Lien on any
property or asset of any Subsidiary existing on the date hereof and set forth
in Schedule 6.02; provided that
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;


 


(iii)                               any Lien existing on any
property or asset prior to the acquisition thereof by any Subsidiary or
existing on any property or asset of any Person that becomes a Subsidiary after
the date hereof prior to the time such Person becomes a Subsidiary; provided that (A) such Lien is not
created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (B) such Lien shall not
apply to any other property or assets of such Subsidiary and (C) such Lien



 


55

















 


shall secure
only those obligations which it secures on the date of such acquisition or the
date such Person becomes a Subsidiary, as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;


 


(iv)                              Liens securing
Indebtedness permitted by clauses (a)(i), (a)(iii), (a)(iv), (a)(v) and
(a)(vii)of Section 6.01;


 


(v)                                 Liens on goods,
inventory or related documents (along with any insurance with respect thereto),
the purchase, shipment or storage price of which is financed by a documentary
letter of credit, bank guarantee or bankers’ acceptance issued or created for
the account of any Subsidiary in the ordinary course of business; and


 


(vi)                              other Liens securing
Indebtedness of Subsidiaries in an aggregate principal amount not exceeding
$15,000,000 at any time outstanding.


 


Notwithstanding
the foregoing, the Company will not create, incur, assume or permit to exist
any Lien on its Equity Interests in KKR Financial LLC, or assign or sell any
income or revenues or rights in respect thereof.


 


(b)                                 No
Credit Party (other than the Company) will create, incur, assume or permit to
exist any Lien on any property now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except Permitted Encumbrances.


 


Section 6.03.  Fundamental
Changes.  (a) No Borrower
Group Company will merge into or consolidate with any other Person, or
liquidate or dissolve, or permit any other Person to merge into or consolidate
with it, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing, (i) any
Person may merge into the Company in a transaction in which the Company is the
surviving corporation, (ii) any Person may merge into any Subsidiary in a
transaction in which the surviving entity is a Subsidiary and (iii) any
Borrower Group Company (except the Company) may liquidate or dissolve if (x) the
Company determines in good faith that such liquidation or dissolution is in the
best interests of the Company and is not materially disadvantageous to the
Lenders and (y) in the case of a Credit Party, such liquidation or
dissolution follows the liquidation or dissolution of the Investment Fund of
which it is the general partner.


 


(b)                                 Neither
the Company nor any Subsidiary will engage to any material extent in any
business except businesses of the types conducted by such Person on the date of
this Agreement and businesses reasonably related thereto.


 


(c)                                  No
Credit Party (other than the Company) will engage in any business or activity
except acting as the general partner of a private equity fund.


 


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Section 6.04.  Transactions
with Affiliates.  No Borrower
Group Company will sell, lease or otherwise transfer any property to, or
purchase, lease or otherwise acquire any property from, or otherwise engage in
any other transaction with, any of its Affiliates, except transactions that are
on terms and conditions that, in the aggregate, are not less favorable to such
Borrower Group Company than could be obtained on an arm’s-length basis from
unrelated third parties (it being understood that dividends and other
distributions paid by any Person to its equity holders in accordance such
Person’s Constituent Documents shall not be prohibited by this Section).


 


Section 6.05.  Fiscal
Year.  No Credit Party shall
change its fiscal year-end from December 31.


 


Section 6.06.  Financial
Covenant.  The Company will
not permit the ratio of Funds to Cash Interest Expense for any period of four consecutive
fiscal quarters (as determined as of the last day of such period) to be less
than 3.50:1.00.


 


ARTICLE 7

EVENTS OF DEFAULT


 


If any of the
following events (“Events of Default”)
shall occur:


 


(a)                                  the
Borrowers shall fail to pay any principal of any Loan when the same shall
become due and payable;


 


(b)                                 the
Borrowers shall fail to pay any interest on any Loan or any fee, any
reimbursement obligation in respect of any LC Disbursement or any other amount
(other than an amount referred to in (a) of this Article) payable under
any Loan Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five days;


 


(c)                                  any
representation, warranty, or certification made or deemed made by or on behalf
of any Borrower Group Company in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection any Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect when
made or deemed made;


 


(d)                                 the
Company shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the existence of any
Credit Party), 5.08 or 5.09 or in Article 6;


 


57














 


(e)                                  any Credit Party
shall fail to observe or perform any covenant, condition or agreement contained
in any Loan Document (other than those specified in clause (a), (b) or (d) of
this Article), and such failure shall continue unremedied for a period of 30
days after notice thereof from the Administrative Agent to the Company (which
notice will be given at the request of any Lender);


 


(f)                                    any Borrower Group
Company shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of Material Indebtedness, when the same shall
become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;


 


(g)                                 any event or condition
occurs (other than, with respect to Indebtedness in respect of Swap Contracts,
termination events (such as illegality, force majeure or tax events) or
equivalent events that are not events of default pursuant to the terms of such
Swap Contracts) that results in Material Indebtedness becoming due before its
scheduled maturity or that enables or permits the holder or holders of Material
Indebtedness or any trustee or agent on its or their behalf to cause Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, before its scheduled maturity; provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property securing such Indebtedness;


 


(h)                                 an involuntary
proceeding shall be commenced or an involuntary petition shall be filed seeking
(i) liquidation, reorganization or other relief in respect of any Credit
Party or Material Subsidiary or its debts, or of a substantial part of its
assets, 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 for any Credit Party or Material
Subsidiary or for a substantial part of its assets, 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;


 


(i)                                     any Credit Party
or Material Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, 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 (h) of this Article, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for any Credit Party or Material Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed


 


58

















 


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;


 


(j)                                     any Credit Party
or Material Subsidiary shall admit in writing its inability or fail generally
to pay its debts as they become due;


 


(k)                                  one or more judgments
for the payment of money in an aggregate amount in excess of $50,000,000
(excluding any amount of such judgment as to which an insurance company, (i) having
an A.M. Best financial strength 
rating of “A” or better and being in a financial size category of XII or
larger (as such category is defined as of the date hereof) or (ii) otherwise
reasonably acceptable to the Required Lenders, has acknowledged liability)
shall be rendered against one or more Borrower Group Companies and 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 asset of any Borrower Group Company to
enforce any such judgment;


 


(l)                                     an ERISA Event
shall have occurred that, in the opinion of the Required Lenders, when taken
together with all other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Company and its Subsidiaries in an
aggregate amount exceeding $50,000,000;


 


(m)                               an ERISA Event or ERISA
Events, or a failure to make a required payment (within the meaning of Section 412(n)(l) of
the Code), shall have occurred with respect to any Plan or Plans that could
reasonably be expected to result in a liability of one or more Borrower Group
Companies in an aggregate amount exceeding $50,000,000;


 


(n)                                 (i) the number of
active participants in an International Plan shall decrease by 20% or more from
the number of active participants in such Plan on the last day of the
immediately preceding year; (ii) an International Plan shall fail to
comply with funding requirements under applicable law; (iii) an
International Plan shall fail to pay benefits when due; or (iv) an
International Plan shall fail to comply with applicable local law, which, in
the aggregate, could reasonably be expected to result in liability of one or
more Borrower Group Companies in an aggregate amount exceeding $50,000,000;


 


(o)                                 a Change in Control
shall occur;


 


(p)                                 or any Support Document
shall at any time fail to constitute a valid and binding agreement of a
Guarantor party thereto or any party shall so assert in writing;


 


59

















 


(q)                                 any General Partner
shall fail to apply any amount received by it from any source first to repay or
prepay Loans following the occurrence and during the continuation of the
failure of the Company to comply with Section 6.06; or


 


(r)                                    the Company or one
of its Affiliates shall fail or cease to act as manager or co-manager of, or
the Company shall fail or cease to be the sole recipient among its Affiliates
of transaction and monitoring fees in respect of portfolio companies of, each
of the Investment Funds;


 


then, and in every such event
(other than an event with respect to any Borrower described in clause (h) or
(i) of this Article), and at any time thereafter during the continuance of
such event, the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Company, take either or both of the following
actions, at the same or different times: 
(i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding 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 Borrowers accrued hereunder, shall become  due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
waived by each Borrower; and in case of any event with respect to any Borrower
described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of
the Borrowers accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are waived by each Borrower.


 


ARTICLE 8

THE ADMINISTRATIVE AGENT


 


Section 8.01.  Appointment and
Authorization.  Each Lender
Party hereby irrevocably appoints the Administrative Agent as its agent 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
of the Loan Documents, together with such actions and powers as are reasonably
incidental thereto.


 


Section 8.02.  Rights and Powers as a
Lender.  The bank serving as
the Administrative Agent 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 such bank and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of business with any
Credit Party or Affiliate thereof as if it were not the Administrative Agent
hereunder.


 


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Section 8.03.  Limited Parties and
Responsibilities.  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, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent 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 in writing to exercise as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for any failure to disclose,
any information relating to any Credit Party that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates
in any capacity.  The Administrative Agent
shall not be liable for any action taken or not taken by it with the consent or
at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in Section 10.02)
or 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 written notice thereof is
given to the Administrative Agent by the Company or a Lender, and 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 any Loan Document, (ii) the contents of any certificate,
report or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (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 4 or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.  Nothing in this
Agreement shall oblige the Administrative Agent 
to carry out any “know your customer” or other checks in relation to any
person on behalf of any Lender and each Lender confirms to the Administrative
Agent that it is solely responsible for any such checks it is required to carry
out and that it may not rely on any statement in relation to such checks made
by the Administrative Agent.


 


Section 8.04.  Authority to Rely on Certain
Writings, Statements and Advice.  The
Administrative Agent shall be entitled to rely on, and shall not incur any
liability for relying on, any notice, request, certificate, consent, statement,
instrument, document or other writing believed by it to be genuine and to have
been signed or sent by the proper Person. 
The Administrative Agent also may rely on any statement made to it
orally or by telephone and believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon.  The Administrative Agent may consult with
legal counsel (who may be counsel for a Credit Party), independent accountants
and other experts selected by it, and


 


61

















 


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.  Sub-Agents and Related
Parties.  The Administrative
Agent may perform any and all its duties and exercise its rights and powers by
or through any one or more sub-agents appointed by it.  The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. 
The exculpatory provisions of the preceding Sections 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; Successor
Administrative Agent.  Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this Section, the Administrative Agent may resign at any time by
notifying the Lenders, the Issuing Bank and the Company.  Upon any such resignation, the Required
Lenders shall have the right, in consultation with the Company, to appoint a
successor.  If no successor shall have
been so appointed by the Required 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 and the Issuing Bank, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank.  Upon acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder.  The fees payable by the Company to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed by the Company and such successor.  After the Administrative Agent’s resignation
hereunder, the provisions of this Article and Section 10.03 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.  Credit Decisions by
Lenders.  Each Lender
acknowledges that it has, independently and without reliance on the Administrative
Agent or any other Lender 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 on the
Administrative Agent or any other Lender 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 on this
Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder.


 


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ARTICLE 9

MULTIPLE BORROWERS


 


Section 9.01.  Joint and Several.  Each Borrower agrees that the
representations and warranties made by, and the liabilities, obligations and
covenants of and applicable to, any and all of the Borrowers under this
Agreement, shall be in every case (whether or not specifically so stated in
each such case herein) joint and several in all circumstances; provided that the maximum liability of each Borrower
hereunder and under the other Loan Documents shall in no event exceed the
amount which can be incurred by such Borrower under applicable laws relating to
the insolvency of debtors.  Each Borrower
accepts, as co-debtor and not merely as surety, such joint and several
liability with the other Borrowers and hereby waives any and all suretyship
defenses that it might otherwise have hereunder.  If and to the extent that any of the
Borrowers shall fail to make any payment with respect to any of the Obligations
as and when due or to perform any of the Obligations in accordance with the
terms thereof, then in each such event the other Borrowers will make such
payment with respect to, or perform, such Obligation.  Every notice by or to the Company shall be
deemed also to constitute simultaneous notice by and to each other Borrower,
every act or omission by any Borrower also shall be deemed an act or omission
of each other Borrower and shall be binding upon each other Borrower.  The Lender Parties shall be entitled to rely,
and all of the Borrowers agree that the Lender Parties may so rely, on any
notice given or action taken or not taken by the Company as being authorized by
all of the Borrowers.  The Issuing Bank
and the Lenders are fully authorized by each Borrower to act and rely also upon
the representations and warranties, covenants, notices, acts and omissions of
each other Borrower.  Without limiting
the generality of the foregoing, each Borrower agrees that the obligations of
such Borrower hereunder and under the other Loan Documents shall be enforceable
against such Borrower notwithstanding that this Agreement or any other Loan
Document may be unenforceable in any respect against any other Borrower or that
any other Borrower may have commenced bankruptcy, reorganization, liquidation
or similar proceedings.


 


Section 9.02.  No Subrogation.  Notwithstanding any payment or payments made
by any of the Borrowers  hereunder or any
set-off or application of funds of any of the Borrowers by any Lender, the
Borrowers shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against any Borrower or any Guarantor or
other guarantor or any collateral security or guaranty or right of offset held
by the Administrative Agent or any Lender for the payment of the Obligations,
nor shall the Borrowers seek or be entitled to seek any contribution or
reimbursement from any Borrower or any Guarantor or other guarantor in respect
of payments made by any Borrower hereunder, until all amounts owing to the
Administrative Agent and the Lenders by the Borrowers on account of the
Obligations are paid in full and the Commitments are terminated (it being
understood that contingent indemnity obligations not then due shall be deemed
not to be owing).  If any amount shall be


 


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paid to any Borrower on account
of such subrogation or contribution rights at any time when all of the
Obligations shall not have been paid in full or the Commitments shall not have
been terminated, such amount shall be held by such Borrower in trust for the
Administrative Agent and the Lenders, segregated from other funds of such
Borrower, and shall, promptly upon receipt by such Borrower, be turned over to
the Administrative Agent in the exact form received by such Borrower (duly
indorsed by such Borrower to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine.


 


Section 9.03.  Full Knowledge.  Each Borrower acknowledges, represents and
warrants that such Borrower has had a full and adequate opportunity to review
the Loan Documents.  Each Borrower
represents and warrants that such Borrower fully understands the remedies the
Administrative Agent (on behalf of the Lenders) may pursue against such
Borrower and each other Borrower in the event of a default under the Loan
Documents and such Borrower’s and each other Borrower’s financial condition and
ability to perform under the Loan Documents. 
Each Borrower agrees to keep itself fully informed regarding all aspects
of such Borrower’s and each other Borrower’s financial condition and the
performance of such Borrower’s and each other Borrower’s obligations under this
Agreement and the other Loan Documents. 
Each Borrower agrees that neither the Administrative Agent nor any
Lender has any duty, whether now or in the future, to disclose to any Borrower
any information pertaining to such Borrower, any other Borrower, any Guarantor
or other guarantor or any collateral security or guaranty.


 


Section 9.04.  Reinstatement.  Each Borrower’s obligations hereunder shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, administration, dissolution, liquidation or
reorganization of any Borrower or any Guarantor or other guarantor, or upon or
as a result of the appointment of a receiver, administrative receiver,
administrator, intervenor or conservator of, or trustee or similar officer for,
any Borrower or any Guarantor or other guarantor or any substantial part of the
property of such Borrower, Guarantor or other guarantor, or otherwise, all as
though such payments had not been made.


 


ARTICLE 10

MISCELLANEOUS


 


Section 10.01.  Notices.  (a) Except in the case of
notices and other communications expressly permitted to be given by telephone
(and subject to paragraph (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:


 


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(i)                                     if
to any Borrower, to it in care of the Company at 9 West 57th Street,
Suite 4200, New York, New York 10019 (Telecopy No. (212) 750 0003);


 


(ii)                                  if
to the Administrative Agent, to HSBC Bank plc, Level 24, 8 Canada Square,
London E14 5HQ, United Kingdom, Attention of Corporate Trust & Loans
Agency (Telecopy No. +44 20 7991 4347); provided that
a copy of all such notices and other communications relating to ABR Borrowings
shall be delivered to HSBC Bank plc in care of HSBC Bank USA, National
Association, One HSBC Center, 26th Floor, Buffalo, New York  14203, Attention of Tricia Graham/Lynn M
Griffin (Telecopy Nos. (716) 841-1473 and (212) 525-1334);


 


(iii)                               if
to HSBC Bank plc, in its capacity as the Issuing Bank, to HSBC Bank plc, London
Trade Services Centre, Level 3, 62-76 Park Street, Southwark, London SE1 9RN,
United Kingdom, Attention of David Kimberlin (Telecopy No. +44 20 7260
5637);


 


(iv)                              if
to the Swingline Lender, to HSBC Bank plc, Level 24, 8 Canada Square, London
E14 5HQ, United Kingdom, Attention of Corporate Trust & Loans Agency
(Telecopy No. +44 20 7991 4347), with a copy to HSBC Bank plc in care of
HSBC Bank USA, National Association, One HSBC Center, 26th Floor,
Buffalo, New York  14203, Attention of
Tricia Graham/Lynn M Griffin (Telecopy Nos. (716) 841-1473 and (212)
525-1334); and


 


(v)                                 if
to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.


 


(b)                                 Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that
the foregoing shall not apply to notices pursuant to Article 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender.  The Administrative Agent or the Company may,
in its discretion, agree to accept notices and other communications to it or in
its care hereunder by electronic communications pursuant to procedures approved
by it; provided that approval of such
procedures may be limited to particular notices or communications.


 


(c)                                  Any
party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto.  All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt, which shall be deemed to
occur in the case of courier service, mail or telecopy as follows:


 


(i)                                     if by way of
courier service or mail, when it has been left at the relevant address (or in
the case of mail three Business Days after being


 


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deposited in the mail postage prepaid) in an envelope addressed to such
party at that address; or


 


(ii)                                  if by way of
telecopy, when received in legible form;


 


and, if a particular department or officer is specified as part of its
address details provided pursuant to this Section, if addressed to that
department or officer; provided that (x) any communication to be made or
delivered to the Administrative Agent will be effective only when actually
received by the Administrative Agent and then only if it is expressly marked
for the attention of the department or officer specified by the Administrative
Agent for this purpose, and (y) it is understood that any communication
made or delivered to the Company in accordance with this Section will be
deemed to have been made or delivered to each of the Credit Parties.


 


Section 10.02.  Waivers; Amendments.  (a) No failure or delay by
any Lender Party in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Lender Parties
under the Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. 
No waiver of any provision of any Loan Document or consent to any departure
by any Credit Party therefrom shall in any event be effective unless the same
shall be permitted by Section 10.02(b), and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given.  Without limiting the generality
of the foregoing, the making of a Loan or issuance, amendment, renewal or
extension of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether any Lender Party may have had notice or
knowledge of such Default at the time.


 


(b)                                 No
Loan Document or provision thereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Company
and the Required Lenders or by the Company and the Administrative Agent with
the consent of the Required Lenders; provided that
no such agreement shall


 


(i)                                     increase the
Commitment of a Lender without its written consent,


 


(ii)                                  reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon,
or reduce any fee payable hereunder, without the written consent of each Lender
Party directly and adversely affected thereby,


 


(iii)                               postpone the scheduled
date of payment of the principal amount of any Loan or LC Disbursement, or any
date for the payment of


 


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any interest or any fee payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender Party directly
and adversely affected thereby,


 


(iv)                              change Section 2.17(b) or
(c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender,


 


(v)                                 change any provision
of this Section or the definition of “Required Lenders”
or any other provision of any Loan Document specifying the number or percentage
of Lenders required to take any action thereunder, without the  written consent of each Lender,


 


(vi)                              release all or
substantially all of the Guarantors from the General Partner Guaranty or other
Support Document (except as expressly provided hereunder or under such Support
Document), or limit the liability of all or substantially all of the Guarantors
in respect thereof, without the written consent of each Lender, or


 


(vii)                           amend Section 1.06 or
the definition of “Alternative Currency”
without the written consent of each Lender;


 


provided further
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, the Issuing Bank or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, the
Issuing Bank or the Swingline Lender, as the case may be.


 


Section 10.03.  Expenses; Indemnity; Damage
Waiver.  (a) The Company
shall pay (i) all reasonable out of pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of the Loan Documents and any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out-of-pocket expenses incurred by any
Lender Party, including the fees, charges and disbursements of any counsel for
any Lender Party (which shall be limited to one counsel for all Lender Parties,
except to the extent that the Administrative Agent reasonably determines that a
conflict of interest requires otherwise), in connection with the enforcement or
protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of


 


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pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans or Letters
of Credit.


 


(b)                                 The
Borrowers shall indemnify each of the Lender Parties and their respective
Related Parties (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 any counsel for any Indemnitee (which shall be limited to one
counsel for all Indemnitees, except to the extent that the Administrative Agent
reasonably determines that a conflict of interest or need for specialized legal
skills requires otherwise), incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of any Loan Document or any other agreement or instrument contemplated
hereby, the performance by the parties to the Loan Documents of their
respective obligations thereunder or the consummation of the Transactions or
any other transactions contemplated hereby, (ii) any Loan or Letter of
Credit or the use of the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by any
Borrower Group Company, or any Environmental Liability related in any way to
any Borrower Group Company, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that
such indemnity shall not be available any Indemnitee 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 such Indemnitee’s bad faith, gross negligence or
willful misconduct or from a breach of the obligations of such Indemnitee under
the Credit Agreement or (y) arise out of, or in connection with, any
actual or threatened litigation, investigation or proceeding that does not
involve an act or omission by the Company or any of its Affiliates and that is
brought by one Indemnitee against another Indemnitee.


 


(c)                                  To
the extent that the Borrowers fail to pay any amount required to be paid by it
to the Administrative Agent, the Issuing Bank or the Swingline Lender under Section 10.03(a) or
(b), each Lender severally agrees to pay to the Administrative Agent, the
Issuing Bank or the Swingline Lender, as the case may be, such Lender’s
Applicable 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, the Issuing Bank or the
Swingline Lender in its capacity as such. 
For purposes hereof, a Lender’s “pro rata share”
shall be determined based on its share of the sum of the total Credit Exposures
and unused Commitments at the time.


 


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(d)                                 To
the extent permitted by applicable law, no Borrower shall assert, and each
Borrower hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.


 


(e)                                  All
amounts due under this Section shall be payable within ten days after
written demand therefor.


 


Section 10.04.  Successors and Assigns.  (a) The provisions of this
Agreement shall be binding on and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder or under any Co-Borrower Agreement without the prior written consent
of each Lender (and any attempted assignment or transfer by any Borrower
without such consent shall be null and void), provided
that a Co-Borrower which is being liquidated or dissolved following the
liquidation or dissolution of the Investment Fund of which it is the general
partner may assign or otherwise transfer its rights and obligations hereunder
or under any Co-Borrower Agreement to any other Co-Borrower, and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. 
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 (including any Affiliate of the Issuing
Bank that issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of the Lender Parties) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b)                                 (i) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld) of:


 


(A)                              the
Company, provided that no consent of the Company
shall be required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is continuing, any
other assignee, unless such assignment is to a private equity firm or fund
managed by a firm whose primary purpose is generally understood to be private
equity investing (versus hedge funds or other alternative investment vehicles),
in which case such assignment shall require the consent of the Company in its
sole discretion;


 


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(B)                                the
Administrative Agent, provided that
no consent of the Administrative Agent shall be required for an assignment of
any Commitment to an assignee that is a Lender with a Commitment immediately
prior to giving effect to such assignment;


 


(C)                                the
Issuing Bank; and


 


(D)          the Swingline Lender.


 


(ii)          Assignments shall be
subject to the following additional conditions:


 


(A)                              except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $10,000,000 unless each of the Company and the Administrative Agent
otherwise consent, provided that
no such consent of the Company shall be required if an Event of Default has
occurred and is continuing;


 


(B)                                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;


 


(C)           the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment, together with a processing and
recordation fee of $3,500;


 


(D)          the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent a completed Administrative Questionnaire in which the
assignee designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Company, the other
Credit Parties and their related parties or their respective securities) will
be made available and who may receive such information in accordance with the
assignee’s compliance procedures and applicable laws, including Federal and
state securities laws; and


 


(E)           the Administrative Agent shall not be obligated to consent
to an assignment hereunder until it is satisfied it has complied with all
necessary “know your customer” or other similar checks under all applicable
laws and regulations in relation to the assignment to the assignee, and an
assignment will only be


 


70

















 


effective after performance by the
Administrative Agent of all “know your customer” or other checks relating to
any Person that it is required to carry out in relation to such assignment, the
completion of which the Administrative Agent shall promptly notify to the
assigning Lender and the assignee.


 


For the purposes of this Section 10.04(b),
the term “Approved Fund” has the following
meaning:


 


“Approved Fund”
means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit
in the ordinary course of its business and 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.


 


(iii)                               Subject
to acceptance and recording thereof pursuant to subsection (b)(iv) of this
Section, from and after the effective date specified in each Assignment the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment, 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, be released from its obligations under
this Agreement (and, in the case of an Assignment 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 2.14, 2.15, 2.16 and 10.03). 
Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (c) of this Section.


 


(iv)                              The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices a copy of each Assignment delivered to it
and a register for the recordation of the names and addresses of the Lenders,
and the Commitment of, and principal amounts of the Loans and LC Disbursements
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 parties hereto may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be
available for inspection by any party hereto, at any reasonable time and from
time to time upon reasonable prior notice.


 


(v)                                 Upon
its receipt of a duly completed Assignment executed by an assigning Lender and
an assignee, the assignee’s completed Administrative Questionnaire (unless the
assignee shall already be a


 


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Lender hereunder), the processing and
recordation fee referred to in subsection (b)(ii)(C) of this Section and
any written consent to such assignment required by subsection (b) of this
Section, the Administrative Agent shall accept such Assignment and record the
information contained therein in the Register; provided
that if either the assigning Lender or the assignee shall have failed to make
any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or
(e), 2.06(b), 2.17(d) or 10.03(c), the Administrative Agent shall have no
obligation to accept such Assignment and record the information therein in the
Register unless and until such payment shall have been made in full, together
with all accrued interest thereon.  No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this subsection.


 


(c)                        (i) Any
Lender may, without the consent of any Credit Party or other Lender Party, sell
participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (C) the Borrowers and the other Lender Parties
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 the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; 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 to Section 10.02(b) that
affects such Participant.  Subject to
subsection (c)(ii) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section.


 


(ii)                                  A
Participant shall not be entitled to receive any greater payment under Section 2.14
or Section 2.16 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Company’s prior
written consent.  A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.16 unless the Company is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 2.16(e) as though it
were a Lender.


 


(d)                       Any Lender
may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including
without limitation any pledge or assignment to secure


 


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obligations to
a Federal Reserve Bank, and this Section shall not apply to any such
pledge or assignment of a security interest; provided that
no such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.


 


Section 10.05.  Survival.  All covenants, agreements,
representations and warranties made by the Credit Parties in the Loan Documents
and in the certificates or other instruments 
delivered in connection with or pursuant to the Loan Documents shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that any
Lender Party may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as any principal of or accrued
interest on any Loan or any fee or any other amount payable under the Loan
Documents is outstanding and unpaid or any Letter of Credit is outstanding or
any Commitment has not expired or terminated. 
The provisions of Sections 2.14, 2.15, 2.16 and 10.03 and Article 8
shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.


 


Section 10.06.  Counterparts; Integration;
Effectiveness.  This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract.  The Loan Documents and any separate letter
agreements with respect to fees payable to the Administrative Agent constitute
the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. 
Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. 
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.


 


Section 10.07.  Severability.  If any provision of any Loan
Document is invalid, illegal or unenforceable in any jurisdiction then, to the
fullest extent permitted by law, (i) such provision shall, as to such
jurisdiction, be ineffective to the extent (but only to the extent) of such
invalidity, illegality or unenforceability, (ii) the other provisions of
the Loan Documents shall remain in full force and effect in such jurisdiction
and shall be liberally construed in favor of the Lender


 


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Parties in order to carry out
the intentions of the parties thereto as nearly as may be possible and (iii) the
invalidity, illegality or unenforceability of any such provision in any
jurisdiction shall not affect the validity, legality or enforceability of such
provision in any other jurisdiction.


 


Section 10.08.  Right of Setoff.  If an Event of Default shall have
occurred and be continuing, each Lender Party and each Affiliate of the
Administrative Agent is authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender Party or Affiliate to or for
the credit or the account of a Borrower against any of and all the obligations
of a Borrower now or hereafter existing under this Agreement held by such Lender
Party, irrespective of whether or not such Lender Party shall have made any
demand under this Agreement and although such obligations may be
unmatured.  The rights of each Lender
Party under this Section are in addition to other rights and remedies (including
other rights of setoff) which such Lender Party may have.


 


Section 10.09.  Governing Law; Jurisdiction;
Consent to Service of Process.  (a) This
Agreement shall be construed in accordance with and governed by the law of the
State of New York.


 


(b)                       Each party
hereto irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of the Supreme Court 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 each party hereto irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. 
Each party hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.  Nothing in any Loan Document shall affect any
right that any Lender Party may otherwise have to bring any action or
proceeding relating to any Loan Document against any Credit Party or its
properties in the courts of any jurisdiction.


 


(c)                        Each party
hereto irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or
relating to any Loan Document in any court referred to Section 10.09(b).  Each party hereto irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of any such suit, action or proceeding in any such court.


 


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(d)                       Each party
hereto irrevocably consents to service of process in the manner provided for
notices in Section 10.01.  Nothing
in any Loan Document will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.


 


Each Co-Borrower irrevocably appoints the
Company (the “Process Agent”) as its agent to
receive on behalf of such Co-Borrower and its properties service of copies of
the summon and complaint and any other process which may be served in any such
action or proceeding. Such service may be made by mailing or delivering a copy
of such process to such Co-Borrower in care of the Process Agent at the Process
Agent’s above address, and each such Co-Borrower hereby irrevocably authorizes
and directs the Process Agent to accept such service on its behalf.


 


Section 10.10.  Waiver of Jury Trial.  EACH PARTY HERETO 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 LOAN DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 
EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


Section 10.11.  Headings.  Article and Section headings
and the Table of Contents 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 10.12.  Confidentiality.  (a) Each Lender Party agrees
to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (i) to its and its Affiliates’
directors, officers, employees and agents, including accountants, legal
counsel, other advisors and any sub-agent appointed pursuant to Section 8.05
(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), (ii) to the extent requested by any
regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other
party to this Agreement, (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to any Loan
Document or the enforcement of any right thereunder, (vi) subject to an
agreement containing provisions substantially the same as those of this
Section, to


 


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(x) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (y) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Company or any other Credit Party and its
obligations, (vii) with the consent of the Company or (viii) 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 any
Lender Party on a nonconfidential basis from a source other than the
Company.  For the purposes of this
Section, “Information” means all information
received from the Company relating to the Company or its business, other than
any such information that is available to any Lender Party on a nonconfidential
basis prior to disclosure by the Company. 
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.


 


(b)                       EACH LENDER
ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 10.12(a) FURNISHED
TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC
INFORMATION CONCERNING THE COMPANY AND ITS RELATED PARTIES OR THEIR RESPECTIVE
SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING
THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.


 


(c)                        ALL
INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
COMPANY OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN
MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY AND ITS RELATED PARTIES OR
THEIR RESPECTIVE SECURITIES.  ACCORDINGLY,
EACH LENDER REPRESENTS TO THE COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE
INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE
WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.


 


Section 10.13.  Interest Rate Limitation.  Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the “Charges”),
shall exceed the maximum lawful rate (the “Maximum Rate”)
that may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such


 


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Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Charges that would have been
payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
payment, shall have been received by such Lender.


 


Section 10.14.  “Know Your Customer” Checks.


 


(a)                        If:


 


(i)                                     the
introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this Agreement;


 


(ii)                                  any
change in the status of a Credit Party after the date of this Agreement; or


 


(iii)                               a
proposed assignment by a Lender under this Agreement to a party that is not a
Lender prior to such assignment,


 


obliges the Administrative
Agent or any Lender (or, in the case of paragraph (iii)) above, any prospective
new Lender) to comply with “know your customer” or similar identification
procedures in circumstances where the necessary information is not already
available to it, each Credit Party shall promptly upon the request of the
Administrative Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself or on behalf of any Lender) or any Lender (for
itself or, in the case of the event described in paragraph (iii) above, on
behalf of any prospective new Lender) in order for the Administrative Agent,
such Lender or, in the case of the event described in paragraph (iii) above,
any prospective new Lender to carry out and be satisfied it has complied with
all necessary “know your customer” or other similar checks under all applicable
laws and regulations pursuant to the transactions contemplated in the Loan
Documents.


 


(b)                       Each Lender
shall promptly upon the request of the Administrative Agent supply, or procure
the supply of, such documentation and other evidence as is reasonably requested
by the Administrative Agent (for itself) in order for the Administrative Agent
to carry out and be satisfied it has complied with all necessary “know your
customer” or other similar checks under all applicable laws and regulations
pursuant to the transactions contemplated in the Loan Documents.


 


(c)                        Each
Lender that is subject to the USA PATRIOT Act and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrowers that
pursuant to the requirements of the USA PATRIOT Act, it is required to obtain,
verify and record information that identifies the Borrowers,


 


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which
information includes the name and address of the Borrowers and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrowers in accordance with the USA PATRIOT Act.


 


Section 10.15.  Judgment Currency.  (a)  The Borrowers’
obligations hereunder and under the other Loan Documents to make payments in a
specified currency (the “Obligation Currency”)
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the
effective receipt by the Administrative Agent or a Lender or the Issuing Bank
of the full amount of the Obligation Currency expressed to be payable to the
Administrative Agent or such Lender or the Issuing Bank under this Agreement or
the other Loan Documents.  If, for the
purpose of obtaining or enforcing judgment against any Credit Party in any
court or in any jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency (such other currency being
hereinafter referred to as the “Judgment Currency”)
an amount due in the Obligation Currency, the conversion shall be made, at the
rate of exchange (as quoted by the Administrative Agent or if the
Administrative Agent does not quote a rate of exchange on such currency, by a
known dealer in such currency designated by the Administrative Agent)
determined, in each case, as of the Business Day immediately preceding the date
on which the judgment is given (such Business Day being hereinafter referred to
as the “Judgment Currency Conversion Date”).


 


(b)                       If there is
a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, the Borrowers
covenant and agree to pay, or cause to be paid, such additional amounts, if any
(but in any event not a lesser amount), as may be necessary to ensure that the
amount paid in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the Obligation
Currency which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial award at the rate of exchange prevailing
on the Judgment Currency Conversion Date.


 


(c)                        For
purposes of determining any rate of exchange or currency equivalent for this
Section, such amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.


 


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


 


	
   

  	
  KOHLBERG
  KRAVIS ROBERTS & CO. 

  
	
   

  	
       
  L.P.

  
	
   

  	
   

  
	
   

  	
  By: KKR
  & Co. L.L.C., its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott
  Nuttall

  
	
   

  	
   

  	
  Name: Scott
  Nuttall

  
	
   

  	
   

  	
  Title:  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HSBC Bank
  PLC, as Lender, as Issuing 

  
	
   

  	
       
  Bank and as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David
  Stent

  
	
   

  	
   

  	
  Name: David
  Stent

  
	
   

  	
   

  	
  Title:
  Director

  



 


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