may be, and acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided that no such
amendment, waiver or consent may have the effects set forth in the first proviso
to Section 10.01 of the Existing Credit Agreement without the written consent of
each Lender or each affected Lender, as applicable; and provided, further, that
no such amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under the Existing Credit Agreement
or any other Loan Document;
WHEREAS, BofA is, as of the date hereof, the Administrative Agent under the
Existing Credit Agreement;
WHEREAS, BofA and Citicorp constitute, as of the date hereof, all of the Lenders
under the Existing Credit Agreement; and
WHEREAS, the KKR Entities constitute, as of the date hereof, all of the
Borrowers under the Existing Credit Agreement;
NOW THEREFORE, in consideration of the premises and for other good and valuable
consideration, the parties agree as follows:
Section 1.
Defined Terms.
Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used but not otherwise defined
in this Amendment No. 2 (including in the recitals hereto) have the respective
meanings set forth in the Existing Credit Agreement.
Section 2.
Consent and Waiver.
Subject to the accuracy of the
representations and warranties contained in Section 5 hereof and further subject
to the performance of the Transaction in accordance with the definition of
"Transaction" herein, the Required Lenders hereby:
(A)
CONSENT TO THE TRANSACTION AND HEREBY WAIVE ANY DEFAULT OR EVENT OF
DEFAULT ARISING THEREFROM SOLELY FOR THE PURPOSE OF PERMITTING THE TRANSACTION;
AND
(B)
ACKNOWLEDGE AND CONFIRM THAT THE REPURCHASE OF 2012 NOTES IN CONNECTION
WITH THE TRANSACTION SHALL NOT SERVE TO REDUCE THE AMOUNT OF CONVERTIBLE
SECURITIES AVAILABLE TO BE REPURCHASED BY THE BORROWERS PURSUANT TO
SECTION 7.06(A) OF THE CREDIT AGREEMENT.
Section 3.
Amendments.
From and after the Effective Date, the Existing
Credit Agreement shall be amended as follows:
(A)
THE FOLLOWING DEFINITIONS SHALL BE ADDED TO SECTION 1.01 OF THE EXISTING
CREDIT AGREEMENT IN ALPHABETICAL ORDER RELATIVE TO THE OTHER WORDS, TERMS AND
PHRASES DEFINED THEREIN:
""AMENDMENT NO. 2" MEANS THAT CERTAIN CONSENT AND AMENDMENT NO. 2, DATED
JANUARY 11, 2010, TO THIS AGREEMENT."
2
""CONVERTIBLE SECURITIES" MEANS, WITH RESPECT TO ANY PERSON, THE EQUITY
INTERESTS IN SUCH PERSON COMPRISED OF SECURITIES CONVERTIBLE INTO OR
EXCHANGEABLE FOR SHARES OF CAPITAL STOCK OF (OR OTHER OWNERSHIP OR PROFIT
INTERESTS IN) SUCH PERSON."
(B)
THE DEFINITION OF "COMMITMENT" IN SECTION 1.01 OF THE EXISTING CREDIT
AGREEMENT IS HEREBY AMENDED BY DELETING THE PROVISO AT THE END OF SUCH
DEFINITION IN ITS ENTIRETY AND REPLACING SUCH PROVISO WITH THE FOLLOWING:
"PROVIDED THAT EACH SUCH AMOUNT SET FORTH IN CLAUSES (1) AND (2), RESPECTIVELY,
OF THIS DEFINITION SHALL BE ADJUSTED FROM TIME TO TIME