KKR & Co. Inc 8-K, filed Aug 7, 2025
KKR & Co. Inc. (KKR)
8-K
2025-08-07
For: 2025-08-04
View Original
Added on
April 05, 2026
About this 8-K
KKR & Co. Inc filed this 8-K on August 7, 2025, reporting on events of August 4, 2025.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 4, 2025
(Exact name of registrant as specified in its charter)
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(212 ) 750-8300
(Registrant’s telephone number, including area code)
NOT APPLICABLE
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (Sec.230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (Sec.240.12b-2 of this chapter).
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act.
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| Item 1.01 |
Entry into a Material Definitive Agreement.
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The information set forth below under Item 2.03 of this Report on Form 8-K is hereby incorporated by reference into
this Item 1.01.
| Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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On August 7, 2025, KKR & Co. Inc. (the “Issuer”) completed the offering of $900,000,000 aggregate principal amount of its 5.100% Senior Notes due 2035 (the “Notes”). The Notes are guaranteed by KKR Group Partnership L.P., a
subsidiary of the Issuer (the “Guarantor”). The Notes were issued pursuant to an indenture (the “Base Indenture”) dated May 28, 2025 between the Issuer and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as
supplemented by a second supplemental indenture, dated August 7, 2025 (the “Second Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Issuer, the Guarantor and the Trustee.
The Notes bear interest at a rate of 5.100% per annum and will mature on August 7, 2035 unless earlier redeemed. Interest on the Notes accrues from August 7, 2025 and is payable semi-annually
in arrears on February 7 and August 7 of each year, commencing on February 7, 2026 and ending on the maturity date. The Notes are unsecured and unsubordinated obligations of the Issuer. The Notes are fully and unconditionally guaranteed (the
“Guarantee”), on an unsubordinated unsecured basis, by the Guarantor.
The Indenture includes covenants, including limitations on the Issuer’s and the Guarantor’s
ability to, subject to exceptions, incur indebtedness secured by liens on voting stock or profit participating equity interests of their subsidiaries or merge, consolidate or sell, transfer or convey all or substantially all of their assets. The
Indenture also provides for events of default and further provides that the Trustee or the holders of not less than 25% in aggregate principal amount of the outstanding Notes may declare the Notes immediately due and payable upon the occurrence and
during the continuance of any event of default after expiration of any applicable grace period. In the case of specified events of bankruptcy, insolvency, receivership or reorganization, the principal amount of the Notes and any accrued and unpaid
interest on the Notes automatically become due and payable. Prior to May 7, 2035 (three months prior to the maturity date of the
Notes), the Notes may be redeemed at the Issuer’s option in whole or in part, at any time and from time to time, at the make-whole redemption price set forth in the Notes. On or after May 7, 2035 (three months prior to the maturity date of the Notes), the Notes may be redeemed at the Issuer’s option in whole or in part,
at any time and from time to time, at par plus any accrued and unpaid interest on the Notes redeemed to, but not including, the date of redemption. If a change of control repurchase event (as defined in the Indenture) occurs, the Issuer must
offer to repurchase the Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to, but not including, the date of repurchase.
The preceding is a summary of the terms of the Base Indenture, the Second Supplemental Indenture and the form of the Notes, and is qualified in its entirety
by reference to the Base Indenture filed as Exhibit 4.1 to this report, the Second Supplemental Indenture filed as Exhibit 4.2 to this report, and the form of the Notes filed as Exhibit 4.3 to this report and incorporated herein by reference as
though they were fully set forth herein.
| Item 8.01 |
Other Events.
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On August 4, 2025, the Issuer and the Guarantor entered into an underwriting agreement (the
“Underwriting Agreement”) with Morgan Stanley & Co. LLC, Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc., KKR Capital Markets LLC
and UBS Securities LLC, as representatives of the underwriters (collectively, the “Underwriters”), to issue and sell the Notes. The Underwriting Agreement contains certain customary representations, warranties and agreements by the Issuer and the
Guarantor, including indemnification of the Underwriters.
The Notes were issued pursuant to a registration statement on Form S-3 (Registration No. 333-279233) and a related prospectus dated May 8, 2024, including the related prospectus supplement dated August 4, 2025 and filed with the Securities and
Exchange Commission. The Underwriting Agreement is attached hereto as Exhibit 1.1 and is incorporated herein by reference. The foregoing description of the terms of the Underwriting Agreement is qualified in its entirety by reference to such
exhibit.
Copies of the opinions of Simpson Thacher & Bartlett LLP and the Maples Group, counsel to the Issuer and the Guarantor, relating to the legality of the
Notes and the Guarantee are filed as Exhibits 5.1 and 5.2 hereto, respectively.
| Item 9.01 |
Financial Statements and Exhibits.
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Exhibits.
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The following documents are herewith filed or furnished as exhibits to this Current Report on Form 8-K:
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Exhibit No.
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Exhibit Description
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Underwriting Agreement dated as of August 4, 2025 among the Issuer, the Guarantor and Morgan Stanley & Co. LLC, Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc., KKR Capital Markets
LLC and UBS Securities LLC, as representatives of the Underwriters.
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Indenture dated as of May 28, 2025 between the Issuer and the Trustee (incorporated by reference to Exhibit 4.1 to the KKR & Co. Inc. Current Report on Form 8-K filed on May 28, 2025).
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Second Supplemental Indenture dated as of August 7, 2025 among the Issuer, the Guarantor and the Trustee.
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Form of 5.100% Senior Note due 2035 (included in Exhibit 4.2 hereto).
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Opinion of Simpson Thacher & Bartlett LLP.
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Opinion of the Maples Group.
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Cover Page Interactive Data File, formatted in Inline XBRL
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
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KKR & CO. INC.
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Date: August 7, 2025
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By:
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/s/ Christopher Lee |
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Name:
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Christopher Lee
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Title:
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Secretary
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Exhibit 1.1
KKR & CO. INC.
$900,000,000 5.100% Senior Notes due 2035
UNDERWRITING AGREEMENT
August 4, 2025
Morgan Stanley & Co. LLC
Goldman Sachs & Co. LLC
HSBC Securities (USA) Inc.
KKR Capital Markets LLC
UBS Securities LLC
As Representatives of the Underwriters
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
c/o HSBC Securities (USA) Inc.
66 Hudson Boulevard
New York, New York 10001
c/o KKR Capital Markets LLC
30 Hudson Yards
New York, New York 10001
c/o UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
KKR & Co. Inc., a corporation organized under the laws of Delaware (the “Issuer”),
proposes to issue and sell to the several parties named in Schedule I hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, $900,000,000 principal amount of its 5.100% Senior Notes due 2035 (the “Notes”). The Notes will be guaranteed (the “Guarantee” and, together with the Notes, the “Securities”) by KKR Group Partnership L.P., a Cayman Islands exempted limited partnership (the “Guarantor”). The Securities are to be issued under
the indenture (the “Base Indenture”), dated as of May 28, 2025, between the Issuer and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the second supplemental indenture to be dated as of August 7, 2025 (the “Supplemental Indenture”
and, together with the Base Indenture, the “Indenture”), among the Issuer, the Guarantor and the Trustee.
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to
and include the
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documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. The use of the neuter in this underwriting agreement (this “Agreement”) shall include the feminine and masculine wherever appropriate. Certain terms used herein are defined in Section 29 hereof.
1. Representations
and Warranties. Each of the Issuer and the Guarantor (collectively, the “KKR Parties” and each a “KKR Party”) jointly and severally represents and warrants to and agrees with each of the Underwriters that:
(a) The KKR Parties meet the requirements for use
of Form S-3 under the Act and have prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405 (file number 333-279233) on Form S-3, including a related Base Prospectus, for registration under the Act
of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. The KKR Parties may have filed with the Commission, as part of an
amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The KKR Parties will file with the Commission a
final prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the KKR Parties have advised you, prior to the Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.
(b) On each Effective Date, the Registration
Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the
Act and the Exchange Act and the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the KKR Parties make no
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representation or warranty as to the information contained in or omitted from the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, in
reliance upon and in conformity with information furnished in writing to the KKR Parties by or on behalf of any Underwriter through the Representatives specifically for inclusion therein, it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(c) The Disclosure Package, as of the Execution
Time, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the KKR Parties by any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(d) (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of
the Exchange Act or form of prospectus), (iii) at the time the KKR Parties or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in
Rule 163, and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Issuer was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The KKR Parties
agree to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of
the Registration Statement that the KKR Parties or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as the determination date
for purposes of this clause (ii)), each KKR Party was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that any KKR Party be
considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the
final term sheet prepared and filed pursuant to Section 5(b) hereto does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference therein and any
prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the KKR Parties by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8(b) hereof.
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(g) The Issuer is subject to and in full
compliance with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(h) None of the KKR Parties is, or after giving
effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus will be, required to register as an investment company under the Investment Company Act.
(i) None of the KKR Parties has taken, directly or
indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of any KKR Party to facilitate
the sale or resale of the Securities.
(j) The Issuer has been duly organized, is
validly existing as a corporation in good standing under the laws of the State of Delaware with full power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure
Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification, except to the extent that the failure to have such power
and authority or to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Issuer and the Subsidiaries (as defined below), taken as a
whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(k) Each subsidiary of the Issuer, including
without limitation, KKR Group Holdings Corp., KKR Group Partnership L.P., The Global Atlantic Financial Group LLC and each of their respective subsidiaries, but not including the KKR Funds (as defined below) or their portfolio companies or
investments (each a “Subsidiary” and, collectively, the “Subsidiaries”) and each of the KKR Funds, has
been duly organized or formed, is validly existing as a corporation, limited liability company, general or limited or exempted limited partnership, trust or other entity, as applicable, in good standing (to the extent such concept exists in the
jurisdiction in question) under the laws of the jurisdiction in which it is chartered, registered or organized with full corporate, limited liability company, partnership, trust or other entity power and authority, as applicable, to own or lease,
as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation, limited liability company, partnership,
trust or other entity, as applicable, and is in good standing (to the extent such concept exists in the jurisdiction in question) under the laws of each jurisdiction that requires such qualification, except to the extent that the failure to have
such power and authority or to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. “KKR Funds” means, collectively, all
Funds (as defined below) (excluding their portfolio companies and investments thereof, and excluding special purpose entities formed to acquire any such portfolio companies and investments) (i) sponsored or promoted by any of the Subsidiaries,
(ii) for which any of the Subsidiaries acts as a general partner or managing member (or in a similar capacity) or (iii) for which any of the Subsidiaries acts as an investment adviser or investment manager; and “Fund” means any investment vehicle (whether open-ended or closed-ended) to manage investments on behalf of third party investors including, without limitation, an
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investment company, a general and limited partnership, a trust, a company or other business entity organized in any jurisdiction that provides for management fees,
incentive fees or “carried interest” (or other similar profits allocations) to be borne directly or indirectly by investors therein.
(l) All of the outstanding shares of capital
stock, partnership interests, partnership units, member interests or other equity interests of each Subsidiary have been duly authorized and validly issued and are fully paid (in the case of any Subsidiaries that are organized as limited
liability companies, limited partnerships or other entities, to the extent required under the applicable limited liability company, limited partnership or other organizational agreement) and non-assessable (except in the case of interests held in
partnerships, limited liability companies or similar entities under the applicable laws of other jurisdictions, in the case of any Subsidiaries that are organized as limited liability companies, as such non-assessability may be affected by
Section 18-607 or Section 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) or similar provisions under the applicable laws of other jurisdictions
or the applicable limited liability company agreement and, in the case of any Subsidiaries that are organized as limited partnerships, as such non-assessability may be affected by Section 17-607 or Section 17-804 of the Delaware Revised Uniform
Limited Partnership Act (the “Delaware RULPA”) or similar provisions under the applicable laws of other jurisdictions or the applicable limited partnership agreement), and,
to the extent owned directly or indirectly by the Issuer, are owned free and clear of any security interest, claim, lien or encumbrance, except (i) any security interest, claim, lien or encumbrance with respect to (A) the Third Amended and
Restated Credit Agreement dated as of July 3, 2024 among Kohlberg Kravis Roberts & Co. L.P. and the other parties thereto, (B) the Credit Agreement dated as of May 7, 2024 among Global Atlantic Financial Limited and the other parties thereto,
(C) the Fourth Amended and Restated 5-Year Revolving Credit Agreement dated as of April 4, 2024 among KKR Capital Markets Holdings, L.P. and the other parties thereto, (D) the 364-Day Revolving Credit Agreement dated as of April 2, 2025 among KKR
Capital Markets Holdings L.P. and the other parties thereto, and (E) customary interest rate and foreign exchange swaps, if any, and (ii) in each case as disclosed in the Disclosure Package and the Final Prospectus or as would not reasonably be
expected to have a Material Adverse Effect.
(m) The statements in the Base Prospectus,
Preliminary Prospectus and the Final Prospectus under the headings “Description of Debt Securities and Guarantees,” “Description of the Notes,” “Plan of Distribution,” “Underwriting (Conflicts of Interest),” “Certain United States Federal Income
Tax Consequences,” and “Summary – Organizational Structure” fairly summarize the matters therein described in all material respects.
(n) This Agreement has been duly authorized,
executed and delivered by or on behalf of each KKR Party.
(o) The Indenture has been duly authorized by each
of the KKR Parties and, assuming due authorization, execution and delivery thereof by the Trustee, when executed and delivered by each of the KKR Parties, will constitute a legal, valid, binding instrument enforceable against each of the KKR
Parties in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
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other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity).
(p) The Notes have been duly authorized, and, when
executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters, will have been duly executed and delivered by the Issuer and will constitute the legal, valid and binding obligations
of the Issuer entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect
and to general principles of equity).
(q) The Guarantee have been duly authorized, and,
when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters, will have been duly executed and delivered by the Guarantor and will constitute the legal, valid and binding
obligations of the Guarantor entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to
time in effect and to general principles of equity).
(r) The Fourth Amended and Restated Limited
Partnership Agreement (dated as of August 6, 2024) of KKR Group Partnership L.P. has been duly authorized, executed and delivered by KKR Group Holdings Corp., KKR Intermediate Partnership L.P. and KKR Group Holdings L.P. (formerly known as KKR
Holdings L.P.) and is a valid and legally binding agreement of KKR Group Holdings Corp., in its capacity as the general partner, and KKR Intermediate Partnership L.P. and KKR Group Holdings L.P., in their capacity as limited partners, of KKR
Group Partnership L.P., enforceable against them in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors rights and to general equity principles.
(s) No consent, approval, authorization, filing
with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture, except such as may be required under the blue sky laws of any jurisdiction in which the Securities
are offered and sold and except for any such consents, approvals, authorizations, filings or orders the absence of which would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(t) None of the execution and delivery of this
Agreement or the Indenture, the issuance and sale of the Securities, or the consummation of any other of the transactions herein or therein contemplated, or the fulfillment of the terms hereof or thereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuer or any of the Subsidiaries pursuant to (i) the charter or by-laws or comparable constituting documents of the Issuer or any of the Subsidiaries;
(ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Issuer or any of the Subsidiaries is a party or bound or to
which its or their property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency,
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governmental body, arbitrator or other authority having jurisdiction over the Issuer or any of the Subsidiaries or any of their respective properties, which conflict,
breach, violation or imposition would, in the case of clauses (ii) and (iii) above, either individually or in the aggregate with all other conflicts, breaches, violations and impositions referred to in this paragraph (t) (if any), have a Material
Adverse Effect.
(u) The historical financial statements and
schedules (including the related notes) of the Issuer included or incorporated by reference in the Disclosure Package and the Final Prospectus present fairly in all material respects the financial position, the results of operations and the
changes in cash flows of the entities purported to be shown thereby as of the dates and for the periods indicated in conformity with accounting principles generally accepted in the United States of America (“GAAP”) and comply in all material respects with the requirements of the Act.
(v) No action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Issuer, any of the Subsidiaries or any of the KKR Funds or its or their property is pending or, to the best knowledge of the KKR Parties, threatened that (i) could
reasonably be expected to have a material adverse effect on the performance of this Agreement, the Indenture or the consummation of any of the transactions contemplated hereby or thereby or (ii) could reasonably be expected to have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(w) None of the Issuer, any of the Subsidiaries nor
any of the KKR Funds is in violation or default of (i) any provision of its charter or bylaws or comparable constituting documents; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Issuer, any of the Subsidiaries
or any of the KKR Funds of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Issuer, any of the Subsidiaries or any of the KKR Funds or any of its or their properties,
as applicable, which violation or default would, in the case of clauses (ii) and (iii) above, either individually or in the aggregate with all other violations and defaults referred to in this paragraph (v) (if any), have a Material Adverse
Effect.
(x) There has not occurred any material adverse
change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, operations, properties or partners’ capital of the Issuer and the Subsidiaries, taken as a whole,
from that set forth in the Disclosure Package.
(y) Deloitte & Touche LLP, whose reports are
included or incorporated by reference in the Disclosure Package and the Final Prospectus, is and, during the periods covered by their reports, was an independent registered public accounting firm as required by the Act and the published rules and
regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
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(z) The Issuer and each of the Subsidiaries are
insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all material policies of insurance and fidelity or surety bonds
insuring the Issuer or any of the Subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect in all material respects; and none of the Issuer nor any of the Subsidiaries has any reason to
believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material
Adverse Effect except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(aa) Each of the Issuer, the Subsidiaries and
the KKR Funds possess all licenses, certificates, permits and other authorizations issued by all applicable authorities necessary to conduct their respective businesses, and none of the Issuer, the Subsidiaries nor the KKR Funds has received any
notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto); each of the Issuer, the Subsidiaries and the KKR Funds, and each of their respective directors,
officers, partners and employees, is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house, association, self-regulatory or similar organization, as applicable, in each case as are necessary to
conduct the businesses of the Issuer, the Subsidiaries and the KKR Funds, except as disclosed in the Disclosure Package and the Final Prospectus or as would not reasonably be expected to have a Material Adverse Effect.
(bb) Each of the Issuer and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Disclosure Package and the Final Prospectus, since the end of the
Issuer’s most recent audited fiscal year, there has been (i) no material weakness in the Issuer’s or any of the Subsidiaries’ internal control over financial reporting (whether or not remediated) and (ii) no change in the Issuer’s or any of the
Subsidiaries’ internal control over financial reporting that has materially adversely affected, or is reasonably likely to materially adversely affect, the Issuer’s or any of the Subsidiaries’ internal control over financial reporting.
(cc) The Issuer maintains “disclosure controls
and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are effective.
8
(dd) Each of the Issuer, the Subsidiaries and
the KKR Funds (i) that is required to be in compliance with, or registered, licensed or qualified pursuant to, the Investment Advisers Act of 1940, as amended, and the rules and regulations promulgated thereunder (the “Advisers Act”), the Investment Company Act, and the rules and regulations promulgated thereunder, or the U.K. Financial Services and Markets Act 2000 (the “FSMA”) and the rules and regulations promulgated thereunder, is in compliance with, or registered, licensed or qualified pursuant to, such laws, rules and regulations (and such registration, license or
qualification is in full force and effect), to the extent applicable, except as disclosed in the Disclosure Package and the Final Prospectus or where the failure to be in such compliance or so registered, licensed or qualified would not, singly
or in the aggregate, reasonably be expected to have a Material Adverse Effect; or (ii) that is required to be registered, licensed or qualified as a broker-dealer or as a commodity trading advisor, a commodity pool operator or a futures
commission merchant or any or all of the foregoing, as applicable, is so registered, licensed or qualified in each jurisdiction where the conduct of its business requires such registration, license or qualification (and such registration, license
or qualification is in full force and effect other than those jurisdictions where approval is being applied for and pending), and is in compliance with all applicable laws requiring any such registration, licensing or qualification, except as
disclosed in the Disclosure Package and the Final Prospectus or where the failure to be so registered, licensed, qualified or in compliance would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ee) To the knowledge of the KKR Parties,
neither the Issuer nor any of the Subsidiaries which act as a general partner or managing member (or in a similar capacity) or as an investment adviser or investment manager of any KKR Fund has performed any act or otherwise engaged in any
conduct that would prevent the Issuer or such Subsidiary, as the case may be, from benefiting from any exculpation clause or other limitation of liability available to it under the terms of the management agreement or advisory agreement, as
applicable, between the Issuer or such Subsidiary, as the case may be, and the KKR Fund except, in each case, as would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ff) The statistical and market and
industry-related data included in the Disclosure Package and the Final Prospectus are based on or derived from sources that the Issuer reasonably believes to be reliable and accurate in all material respects.
(gg) Subsequent to the respective dates as of
which information is given in each of the Disclosure Package and the Final Prospectus, (i) neither the Issuer nor any of the Subsidiaries has incurred any liability or obligation, direct or contingent, nor entered into any transaction; (ii)
neither the Issuer nor any of the Subsidiaries has purchased any of their respective outstanding equity interests, nor declared, paid or otherwise made any dividend or distribution of any kind, except as disclosed (a) in the subsequent events
footnote in the financial statements for the year ended December 31, 2024, and (b) in the subsequent events footnote in the financial statements for the three months ended March 31, 2025; and (iii) there has not been any change in the respective
partners’ capital, short-term debt or long-term debt of any of the Issuer or the Subsidiaries, except in each case (x) as disclosed in each of the Disclosure Package and the Final Prospectus, respectively, or as would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect or (y) any transaction effectuated pursuant to a plan to repurchase shares of common stock pursuant to an announced repurchase program including a
9
plan that satisfies all of the requirements of Rule 10b5-1 under the Exchange Act existing on the date hereof.
(hh) The operations of each of the Issuer, the
Subsidiaries and the KKR Funds are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the anti-money laundering statutes and the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), as applicable, and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any of the Issuer, the Subsidiaries or the KKR Funds with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the KKR
Parties, threatened.
(ii) None of the Issuer, the Subsidiaries nor
the KKR Funds nor, to the knowledge of the KKR Parties, any director, officer, agent, employee or Affiliate of any of the Issuer, the Subsidiaries or the KKR Funds, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is currently subject to any sanctions (“Sanctions”) administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), and each of the KKR Parties represents and covenants that they will not, directly or indirectly, use
the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any of the Issuer, the Subsidiaries or the KKR Funds, joint venture partner or other Person for the purpose of financing
the activities of any person that is the subject of Sanctions.
(jj) None of the Issuer, the Subsidiaries nor
the KKR Funds, nor, to the knowledge of the KKR Parties, any director, officer, agent, employee or other person associated with, affiliated with or acting on behalf of any of the Issuer, the Subsidiaries or the KKR Funds, has taken any action in
furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee
of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for
political office) to illegally influence official action or secure an improper advantage in violation of the Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, or similar law of any jurisdiction applicable to the Issuer, the
Subsidiaries or the KKR Funds; and each of the Issuer, the Subsidiaries and the KKR Funds have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain policies and procedures designed to
promote and achieve compliance with such laws and with the representation and warranty contained herein.
(kk) Any certificate signed by any officer, or
where applicable, the general partner, of any KKR Party and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the relevant KKR
Party, as to matters covered thereby, to each Underwriter.
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(ll) The interactive data in the eXtensible
Business Reporting Language (“XBRL”) included or incorporated by reference in the Disclosure Package and the Final Prospectus fairly presents the information called for in
all material respects and has been prepared in all material respects in accordance with the Commission’s rules and guidelines applicable thereto.
(mm) Each of the Issuer and the Subsidiaries has
timely filed all U.S. federal, and material U.S. state, local and foreign tax returns required to be filed through the date of this Agreement; all such returns were true and complete in all material respects; and all taxes shown as due and
payable on such returns have been timely paid, or withheld and remitted, to the appropriate taxing authority, except (i) for any taxes that are being contested in good faith and for which adequate reserves have been established in accordance with
GAAP or (ii) where failure to pay such taxes would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
2. Purchase
and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Issuer agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Issuer, the principal amount of the Notes set forth in Schedule I hereto opposite such Underwriter’s name at a purchase price (the “Purchase Price”) equal
to 99.102% of the principal amount of the Notes plus accrued interest, if any, from August 7, 2025 to the Closing Date (as defined in Section 3).
3. Delivery
and Payment. Delivery of and payment for the Notes shall be made at 10:00 A.M., New York City time, on August 7, 2025, or at such time on such later date not
more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Issuer or as provided in Section 9 hereof (such date and time of
delivery and payment for the Notes being herein called the “Closing Date”). Delivery of the Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the Representatives of the Purchase Price thereof to or upon the order of the Issuer by wire transfer payable in same-day funds to the account specified by the Issuer.
Delivery of the Securities shall be made through the facilities of The Depository Trust Company, unless the Representatives shall otherwise instruct.
4. Offering
by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Disclosure Package and that the Underwriters may offer and sell Securities to or through
any affiliate of an Underwriter.
5. Agreements.
Each of the KKR Parties agrees with each Underwriter that:
(a) The KKR Parties will furnish to each
Underwriter and to counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may
reasonably request. The KKR
11
Parties will pay the expenses of printing or other production of all documents relating to the offering.
(b) The KKR Parties will prepare a final term
sheet, containing solely a description of final terms of the Securities and the offering thereof, in the form approved by you and attached as Schedule III hereto and will file such term sheet pursuant to Rule 433(d) within the time required by
such Rule.
(c) The KKR Parties will not amend or supplement
the Registration Statement or the Final Prospectus other than by the Issuer filing documents under the Exchange Act that are incorporated by reference therein, without the
prior written consent of the Representatives; provided, however, that prior to the completion of
the distribution of the Securities by the Underwriters (as defined by the Underwriters), the Issuer will not file any document under the Exchange Act that is incorporated by reference in the Registration Statement or the Final Prospectus unless,
prior to such proposed filing, the KKR Parties have furnished the Representatives with a copy of such document for their review and the Representatives have not reasonably objected to the filing of such document. The KKR Parties will promptly
advise the Representatives when any document filed under the Exchange Act that is incorporated by reference in the Disclosure Package or the Final Prospectus shall have been filed with the Commission. The KKR Parties will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The KKR Parties will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the
Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice
objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by any KKR Party of any notification with respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such purpose. The KKR Parties will use their best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the
Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(d) If at any time when a prospectus relating to
the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Disclosure Package or the Final Prospectus as then
amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made at such time not misleading,
or if it shall be
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necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the KKR Parties promptly will (i) notify the Representatives of any such event; (ii) prepare and file with the Commission, subject to the requirements
of Section 5(c), an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (iii) use its best efforts to have any amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives and counsel for the Underwriters without charge in such
quantities as they may reasonably request.
(e) The KKR Parties agree that, unless they have
or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the KKR Parties that, unless it has or shall have obtained, as the case may be, the prior written consent of the
KKR Parties, it has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell
or solicitation of an offer to buy the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the KKR Parties with the
Commission or retained by the KKR Parties under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto. Any such free writing prospectus
consented to by the Representatives or the KKR Parties is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each KKR Party agrees that (x) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free
Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(f) The KKR Parties will arrange, if necessary,
for the qualification of the Securities for sale by the Underwriters under the laws of such jurisdictions as the Representatives may designate (including Japan and certain provinces of Canada) and will maintain such qualifications in effect so
long as required for the sale of the Securities; provided that in no event shall the KKR Parties be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject. The KKR Parties will promptly
advise the Representatives of the receipt by any KKR Party of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(g) As soon as practicable, the Issuer will make
generally available to its security holders and to the Representatives an earnings statement or statements of the Issuer and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
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(h) The KKR Parties will cooperate with the
Representatives and use their best efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(i) The KKR Parties will use the net proceeds
received by the Issuer from the sale of the Securities pursuant to this Agreement in the manner specified in the Disclosure Package and the Final Prospectus under the caption “Use of Proceeds.”
(j) The KKR Parties will not for the period
between the Execution Time and the Closing Date, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, otherwise dispose of, or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the KKR Parties or any Affiliate of the KKR Parties or any person in privity with the KKR Parties or
any Affiliate of the KKR Parties, directly or indirectly, or announce the offering, of any debt securities issued or guaranteed by the KKR Parties (other than the Securities).
(k) The KKR Parties will not take, directly or
indirectly, any action designed to, or that has constituted or that might reasonably be expected to, cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the KKR Parties to
facilitate the sale or resale of the Securities.
(l) The KKR Parties will, for a period of twelve
months following the Execution Time, furnish to the Representatives (i) all reports or other communications (financial or other) regarding the Issuer generally made available to its security holders, and deliver such reports and communications to
the Representatives as soon as they are available, unless such documents are furnished to or filed with the Commission or any securities exchange on which any class of securities of the Issuer is listed and generally made available to the public
and (ii) such additional information concerning the business and financial condition of the KKR Parties as the Representatives may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of
the KKR Parties and their subsidiaries are consolidated in reports furnished to their security holders).
(m) The KKR Parties agree to pay the costs and
expenses relating to the following matters: (i) the preparation of the Indenture and the issuance of the Securities and the fees of the Trustee and any agent of the Trustee; (ii) the preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (iii) the
printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free writing
Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery
of the Securities; (v) any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (vi) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in
14
connection with the offering of the Securities; (vii) the registration of the Securities under the Exchange Act; (viii) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several states, Japan, the provinces of Canada and any other jurisdictions specified pursuant to Section 5(f) (including filing fees and the reasonable fees and expenses of counsel for
the Underwriters relating to such registration and qualification); (ix) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”)
(including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (x) the transportation and other expenses incurred by or on behalf of representatives of the KKR Parties in connection with
presentations to prospective purchasers of the Securities; (xi) the fees and expenses of the KKR Parties’ accountants and the fees and expenses of counsel (including local and special counsel) for the KKR Parties in respect of the transactions
contemplated hereby; (xii) any fees charged by the rating agencies for the rating of the Securities; and (xiii) all other costs and expenses incident to the performance by the KKR Parties of their obligations hereunder. It is understood, however,
that the Underwriters will pay transfer taxes, if any, on resale of any of the Securities by them.
6. Conditions
to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties of the KKR Parties contained herein at the Execution
Time and the Closing Date, as the case may be, to the accuracy of the statements of the KKR Parties made in any certificates pursuant to the provisions hereof, to the performance by the KKR Parties of its obligations hereunder and to the
following additional conditions:
(a) The Final Prospectus, and any supplement
thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the KKR Parties pursuant to Rule 433(d) under the
Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have
been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Issuer shall have requested and caused
Simpson Thacher & Bartlett LLP, counsel for the KKR Parties, to furnish to the Representatives its opinion and disclosure letter, dated the Closing Date and addressed to the Representatives, substantially in the forms attached hereto as
Exhibits A-1 and A-2, respectively.
(c) The Issuer shall have requested and caused
Maples and Calder (Cayman) LLP, special Cayman counsel for KKR Group Partnership L.P., to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as
Exhibit B.
(d) The Representatives shall have received from
Davis Polk & Wardwell LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure Package,
the Final Prospectus (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the KKR Parties shall
15
have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received on the
Closing Date: (i) certificates, dated the Closing Date and each signed by an executive officer or, where applicable, the general partner of each KKR Party, on behalf of each of the KKR Parties to the effect that (x) each of the signers of such
certificate has carefully examined the Disclosure Package and the Final Prospectus and any supplements or amendments thereto, and this Agreement, (y) the representations and warranties of the KKR Parties contained in this Agreement are true and
correct on and as of the Closing Date and that the KKR Parties have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date and (z) since the date
of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change, or any development
involving a prospective material adverse change, in or affecting the condition (financial or otherwise) earnings, business or properties of the Issuer and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), provided
that any executive officer signing and delivering such certificate may rely upon his or her knowledge as to proceedings threatened; and (ii) a certificate, dated the Closing Date and signed by the chief financial officer of the Issuer on behalf
of the Issuer, substantially in the form attached hereto as Exhibit C.
(f) At the Execution Time and at the Closing Date,
Deloitte & Touche LLP shall have furnished to the Representatives letters, at the request of the KKR Parties, dated respectively as of the Execution Time, as of the Closing Date, and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information
contained or incorporated by reference in each of the Disclosure Package, the Preliminary Prospectus and the Final Prospectus; provided that the letter delivered on the
Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(g) Subsequent to the Execution Time or, if
earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change
or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise) earnings, business or
properties of the Issuer and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
16
(h) Subsequent to the Execution Time, there shall
not have been any decrease in the rating of any of the Issuer’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or any notice given of any
intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) [Reserved.]
(j) Prior to the Closing Date, the KKR Parties
shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the KKR Parties in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Underwriters, Davis Polk & Wardwell LLP,
at 450 Lexington Avenue, New York, New York 10017, on the Closing Date.
7. Reimbursement
of Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to
Section 10 hereof or because of any refusal, inability or failure on the part of the KKR Parties to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the KKR Parties,
jointly and severally, will reimburse the Underwriters severally through the Representatives on demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification
and Contribution. (a) The KKR Parties, jointly and severally, agree to indemnify and hold harmless each Underwriter, the directors, officers, employees, Affiliates and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other U.S.
federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities or actions in respect thereof arise out of or are based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or arise out of or are based upon the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact included in the Base Prospectus, any Preliminary Prospectus or any other
preliminary prospectus
17
supplement relating to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared
and filed pursuant to Section 5(b) hereto, or in any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading; and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action; provided, however, that
the KKR Parties will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the KKR Parties by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability
that the KKR Parties may otherwise have.
(b) Each Underwriter severally, and not jointly,
agrees to indemnify and hold harmless each KKR Party, each of its directors, each of its officers, and each person who controls any KKR Party within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity
to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Issuer by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have. The Issuer acknowledges that (i) the statements set forth in the first sentence of the last paragraph of the cover
page regarding delivery of the Securities and (ii) under the heading “Underwriting (Conflicts of Interest),” the seventh, eighth, ninth and tenth paragraphs related to stabilization, syndicate covering transactions and penalty bids in the
Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the Underwriters for inclusion in the Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus or any
other written information used by or on behalf of the KKR Parties in connection with the offer or sale of the Securities, or in any amendment or supplement thereto.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph
(a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the
indemnified party or parties except as set forth below); provided, however, that such counsel
18
shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified
party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the KKR Parties and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending any loss, claim, damage, liability or action) (collectively “Losses”)
to which the KKR Parties and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the KKR Parties on the one hand and by the Underwriters on the other from the offering
of the Securities; provided, however, that in no case shall any Underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the KKR Parties and
the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the KKR Parties on the one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the KKR Parties shall be deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the KKR Parties on the one hand or
the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The KKR Parties and the Underwriters
19
agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee, Affiliate and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the relevant KKR Parties within the meaning of either the Act or the Exchange Act and each officer and each director of such KKR Parties shall
have the same rights to contribution as such KKR Parties, subject in each case to the applicable terms and conditions of this paragraph (d).
9. Default
by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in
Schedule I hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or any KKR Party. In the
event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to any KKR Party or any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination.
This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to any KKR Parties prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in the
Issuer’s common stock shall have been suspended by the Commission or the New York Stock Exchange (“NYSE”) or trading in securities generally on the NYSE shall have been
suspended or limited or minimum prices shall have been established on such exchange; (ii) there shall have occurred a material disruption in clearance or settlement services in the United States; (iii) a banking moratorium shall have been
declared either by U.S. federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is material and adverse and which, singly or together with any other event specified in this clause (iv), makes it, in the sole judgment of the Representatives, impractical or inadvisable
20
to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement
thereto).
11. Research
Analyst Independence. The KKR Parties acknowledge that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain
regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the KKR Parties and other Subsidiaries and/or the
offering that differ from the views of their respective investment banking divisions. The KKR Parties hereby waive and release, to the fullest extent permitted by law, any claims that the KKR Parties or any other Subsidiary may have against the
Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice
communicated to any KKR Party or any other Subsidiary by such Underwriters’ investment banking divisions. The KKR Parties acknowledge that each of the Underwriters is a full service securities firm and as such from time to time, subject to
applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the entities that may be the subject of the transactions contemplated by this
Agreement.
12. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the KKR Parties or their respective officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Underwriters or the KKR Parties or any of the indemnified persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
13. Notices.
All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to:
21
| • |
Morgan Stanley & Co. LLC, 1585 Broadway, 29th Floor, New York, New York 10036, Attention: Investment Banking Division (fax: (212) 507-8999)
|
| • |
Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282, Attention: Registration Department , Fax No.: (212) 902-9316, Email: registration-syndops@ny.email.gs.com
|
| • |
HSBC Securities (USA) Inc., 66 Hudson Boulevard, New York, New York 10001, Attention: DCM Legal Americas
|
| • |
KKR Capital Markets LLC, 30 Hudson Yards, New York, New York, 10001, Attention: Legal Department; Fax: (212) 859-4000 or email richard.chand@kkr.com
|
| • |
UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: Fixed Income Syndicate; Email: dl-synd-stamford@ubs.com
|
or, if sent to any of the KKR Parties, will be mailed, delivered or telefaxed to (212) 750-0003 and confirmed to it at 30 Hudson Yards, New York, New York 10001, Attention:
Chief Legal Officer.
14. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the indemnified persons referred to in Section 8 hereof and their respective successors, and no other person will have any
right or obligation hereunder.
15. Jurisdiction.
KKR Group Partnership L.P. agrees that any suit, action or proceeding against it brought by any Underwriter, the directors, officers, employees and agents of any Underwriter, or by any person who controls any Underwriter, arising out of or based
upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in The City of New York and County of New York, and waives any objection which either may now or hereafter have to the laying of
venue of any such proceeding, and each irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. KKR Group Partnership L.P. hereby appoints its general partner, KKR Group Holdings Corp., as its
authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated herein that may be instituted in any State or U.S. federal court in The City of New York and County of New York, by any Underwriter, the directors, officers, employees, Affiliates and agents of any Underwriter, or by any person who
controls any Underwriter, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. KKR Group Partnership L.P. hereby represents and warrants that the Authorized Agent has accepted
such appointment and has agreed to act as said agent for service of process, and KKR Group Partnership L.P. agrees to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in
full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon KKR Group Partnership L.P. Notwithstanding
22
the foregoing, any action arising out of or based upon this Agreement may be instituted by any Underwriter, the directors, officers, employees, Affiliates and agents of any
Underwriter, or by any person who controls any Underwriter, in any court of competent jurisdiction in the Cayman Islands.
16. Integration.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the KKR Parties and the Underwriters, or any of them, with respect to the subject matter hereof.
17. Applicable
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be
performed within the State of New York.
18. Waiver
of Jury Trial. Each of the KKR Parties hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
19. No
Fiduciary Duty. Each of the KKR Parties hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the KKR Parties, on the one hand, and the
Underwriters and any Affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of any of the KKR Parties and (c) the KKR Parties’ engagement of the Underwriters in
connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, each of the KKR Parties agrees that it is
solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising any of the KKR Parties on related or other matters). Each of the KKR Parties
agrees that they will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to any of the KKR Parties, in connection with such transaction or the process leading
thereto. The KKR Parties acknowledge that in connection with the offering of the Securities none of the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice, or
solicitation of any action by the Underwriters with respect to any entity or natural person.
20. Currency.
Each reference in this Agreement to U.S. dollars (the “relevant currency”), including by use of the symbol “$”, is of the essence. To the fullest extent permitted by law, the obligation of KKR Group Partnership L.P. in respect of any amount due
under this Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the party entitled to receive such payment
may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately following the day on which such party receives such payment. If the amount
in the relevant currency that may be so purchased for any reason falls short of the amount originally due, KKR Group Partnership L.P. will pay such additional amounts, in the relevant currency, as may be necessary to compensate for the
shortfall. Any obligation of KKR Group Partnership L.P. not discharged by such payment will, to the fullest extent permitted by
23
applicable law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect.
21. Waiver
of Immunity. To the extent that KKR Group Partnership L.P. has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal
process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, KKR Group Partnership L.P. hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations
under this Agreement.
22. Waiver
of Tax Confidentiality. Notwithstanding anything herein to the contrary, purchasers of the Securities (and each employee, representative or other agent of a purchaser) may disclose to any and all persons, without limitation of any
kind, the U.S. tax treatment and U.S. tax structure of any transaction contemplated herein and all materials of any kind (including opinions or other tax analyses) that are provided to the purchasers of the Securities relating to such U.S. tax
treatment and U.S. tax structure, other than any information for which nondisclosure is reasonably necessary in order to comply with applicable securities laws.
23. Patriot
Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their
respective clients, including the KKR Parties, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
24. Counterparts.
This Agreement or any document to be signed in connection with this Agreement may be signed in one or more counterparts by manual, facsimile or electronic signature, each of which shall constitute an original and all of which together shall
constitute one and the same agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include
electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based
recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
25. Headings.
The section headings used herein are for convenience only and shall not affect the construction hereof.
26. Contractual
Recognition of Bail-In (UK). Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding among the parties to this Agreement, each of the parties to this Agreement
acknowledges and accepts that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant United Kingdom (“UK”) resolution authority, and acknowledges, accepts and agrees to be bound by:
24
(a) the effect of the exercise of UK Bail-in
Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of the Initial Purchasers to the Issuer or the Guarantors under this Agreement, which (without limitation) may include and result in any of the following or
some combination thereof: (w) the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon; (x) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other
obligations of the Initial Purchasers or another person (and the issue to or conferral on the Issuer or the Guarantors of such shares, securities or obligations); (y) the cancellation of the UK Bail-in Liability; and/or (z) the amendment or
alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of this Agreement,
as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority.
As used in this Section:
“UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of
unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
“UK Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or
investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
27. Recognition
of the U.S. Special Resolution Regimes. In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and
any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the
laws of the United States or a state of the United States. In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default
Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by
the laws of the United States or a state of the United States.
25
(a) “BHC Act Affiliate” has the meaning assigned
to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
(b) “Covered Entity” means any of the following:
(i) a “covered entity” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
(c) “Default Right” has the meaning assigned to
that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(d) “U.S. Special Resolution Regime” means each of
(i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
28. Investment
Advisor. With respect to any Underwriter who is affiliated with any person or entity engaged to act as an investment adviser on behalf of an advisory client or account who has or will have indirect or direct interest in the
Securities, the Securities being sold to such Underwriter shall not include any Securities attributable to such client (with any such Securities being allocated and sold to the other Underwriters) and, accordingly, the fees or other amounts
received by such Underwriter in connection with the transactions contemplated hereby shall not include any fees or other amounts attributable to such client (and, if there is any unsold allotment in the offering at the Closing Date, such unsold
allotment in respect of Securities attributable to such client shall be allocated solely to Underwriters not affiliated with such client).
29. Definitions.
The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Affiliate” shall have the meaning specified in Rule 501(b) of Regulation D.
“Base Prospectus” shall mean the base prospectus referred to in Section 1(a)
above contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
26
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, and any other pricing information set forth in Schedule II hereto, (iv) the final term sheet prepared and filed pursuant to Section 5(b)
hereto, if any, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement
and any post-effective amendment or amendments thereto became or becomes effective
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in
Rule 405.
“Investment Company Act” shall mean the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission promulgated thereunder.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the
Base Prospectus referred to in Section 1(a) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in
Section 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B,
as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
“Regulation D” shall mean Regulation D under the Act.
“Rule 158”, “Rule
163”, “Rule 164”, “Rule 172”, “Rule
405”, “Rule 415”, “Rule 424”, “Rule
430B” and “Rule 433” refer to such rules under the Act.
[Signature pages follow]
27
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement by and among each of the KKR Parties and the Representatives, acting on behalf of the Underwriters.
|
Very truly yours.
|
||
|
KKR & Co. Inc.
|
||
|
By:
|
/s/ Robert H. Lewin
|
|
|
Name: Robert H. Lewin
|
||
|
Title: Chief Financial Officer
|
||
|
KKR Group Partnership L.P.
|
||
|
By:
|
KKR Group Holdings Corp., its general partner
|
|
|
By:
|
/s/ Robert H. Lewin
|
|
|
Name: Robert H. Lewin
|
||
|
Title: Chief Financial Officer
|
||
1
|
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
|
||
|
Morgan Stanley & Co. LLC
|
||
|
By:
|
/s/ Hector Vazquez
|
|
|
Name: Hector Vazquez
|
||
|
Title: Executive Director
|
||
|
Goldman Sachs & Co. LLC
|
||
|
By:
|
/s/ Thomas Healy
|
|
|
Name: Thomas Healy
|
||
|
Title: Managing Director
|
||
|
HSBC Securities (USA) Inc.
|
||
|
By:
|
/s/ Patrice Altongy
|
|
|
Name: Patrice Altongy
|
||
|
Title: Managing Director
|
||
|
KKR Capital Markets LLC
|
||
|
By:
|
/s/ John Knox
|
|
|
Name: John Knox
|
||
|
Title: CFO
|
||
|
UBS Securities LLC
|
||
|
By:
|
/s/ Jay Anderson
|
|
|
Name: Jay Anderson
|
||
|
Title: Managing Director
|
||
| By: | /s/ Aaditya Niranjan | |
|
Name: Aaditya Niranjan
|
||
|
Title: Director
|
||
SCHEDULE I
|
Underwriters
|
Principal Amount of Notes to be Purchased
|
|||
|
Morgan Stanley & Co. LLC
|
$
|
139,500,000
|
||
|
Goldman Sachs & Co. LLC
|
$
|
139,500,000
|
||
|
HSBC Securities (USA) Inc.
|
$
|
139,500,000
|
||
|
KKR Capital Markets LLC
|
$
|
139,500,000
|
||
|
UBS Securities LLC
|
$
|
139,500,000
|
||
|
Academy Securities, Inc.
|
$
|
6,750,000
|
||
|
Barclays Capital Inc.
|
$
|
6,750,000
|
||
|
Blaylock Van, LLC
|
$
|
6,750,000
|
||
|
BMO Capital Markets Corp.
|
$
|
6,750,000
|
||
|
BNP Paribas Securities Corp.
|
$
|
6,750,000
|
||
|
BNY Mellon Capital Markets, LLC
|
$
|
6,750,000
|
||
|
BofA Securities, Inc.
|
$
|
6,750,000
|
||
|
CIBC World Markets Corp.
|
$
|
6,750,000
|
||
|
Citigroup Global Markets Inc.
|
$
|
6,750,000
|
||
|
Credit Agricole Securities (USA) Inc.
|
$
|
6,750,000
|
||
|
Drexel Hamilton, LLC
|
$
|
6,750,000
|
||
|
Independence Point Securities LLC
|
$
|
6,750,000
|
||
|
ING Financial Markets LLC
|
$
|
6,750,000
|
||
|
J.P. Morgan Securities LLC
|
$
|
6,750,000
|
||
|
Loop Capital Markets LLC
|
$
|
6,750,000
|
||
|
Mischler Financial Group, Inc.
|
$
|
6,750,000
|
||
|
Mizuho Securities USA LLC
|
$
|
6,750,000
|
||
|
RBC Capital Markets, LLC
|
$
|
6,750,000
|
||
|
Santander US Capital Markets LLC
|
$
|
6,750,000
|
||
|
Scotia Capital (USA) Inc.
|
$
|
6,750,000
|
||
|
SG Americas Securities, LLC
|
$
|
6,750,000
|
||
|
Siebert Williams Shank & Co. LLC
|
$
|
6,750,000
|
||
|
SMBC Nikko Securities America, Inc.
|
$
|
6,750,000
|
||
|
Standard Chartered Bank
|
$
|
6,750,000
|
||
|
Stern Brothers & Co.
|
$
|
6,750,000
|
||
|
Strong Capital Markets, LLC
|
$
|
6,750,000
|
||
|
TD Securities (USA) LLC
|
$
|
6,750,000
|
||
|
Truist Securities, Inc.
|
$
|
6,750,000
|
||
|
U.S. Bancorp Investments, Inc.
|
$
|
6,750,000
|
||
|
Wells Fargo Securities, LLC
|
$
|
6,750,000
|
||
|
Total
|
$
|
900,000,000
|
SCHEDULE II
List of Free Writing Prospectuses (expressly included in the Disclosure Package):
The Pricing Term Sheet in the form of Schedule III.
SCHEDULE III
Pricing Term Sheet
[Attached]
KKR & Co. Inc.
5.100% Senior Notes due 2035
Final Pricing Term Sheet
August 4, 2025
The information in this pricing term sheet should be read together with KKR & Co. Inc.’s preliminary
prospectus supplement dated August 4, 2025 (the “Preliminary Prospectus Supplement”), including the documents incorporated by reference therein and the related base prospectus dated May 8, 2024, filed pursuant to Rule 424(b) under the Securities Act
of 1933, as amended, Registration No. 333-279233. Terms not defined in this pricing term sheet have the meanings given to such terms in the Preliminary Prospectus Supplement. The information in this pricing term sheet supersedes the information in
the Preliminary Prospectus Supplement and the accompanying prospectus to the extent it is inconsistent with the information in the Preliminary Prospectus Supplement or the accompanying prospectus. All references to dollar amounts are references to
U.S. dollars.
|
Issuer:
|
KKR & Co. Inc.
|
|
Initial Guarantor:
|
KKR Group Partnership L.P.
|
|
Securities:
|
5.100% Senior Notes due 2035 (the “notes”)
|
|
Ranking:
|
Senior unsecured
|
|
Principal Amount
Offered:
|
$900,000,000
|
|
Trade Date:
|
August 4, 2025
|
|
Settlement Date*:
|
August 7, 2025 (T+3)
|
|
Maturity Date:
|
August 7, 2035
|
|
Coupon:
|
5.100%
|
|
Underwriting
Discount:
|
0.650%
|
|
Price to Public:
|
99.752% of principal amount, plus accrued interest, if any, from August 7, 2025 to the date of delivery
|
|
Benchmark Treasury:
|
UST 4.250% due May 15, 2035
|
|
Benchmark Treasury
Price; Yield:
|
100-12; 4.202%
|
|
Spread to Benchmark
Treasury:
|
T+93 basis points
|
|
Yield to Maturity:
|
5.132%
|
|
Interest Payment
Dates:
|
February 7 and August 7 of each year, commencing on February 7, 2026
|
|
Record Dates:
|
Interest payments on the notes will be made to the holders of record at the close of business on January 23 or July 23, as the case may be, immediately
preceding such February 7 and August 7, whether or not a business day
|
|
Optional Redemption:
|
At any time prior to May 7, 2035 (three months prior to the maturity date) (the “Par Call Date”), at a make-whole price equal to the greater of (1)(a) the sum
of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption, and (2) 100% of the principal amount of the notes to be redeemed, plus, in either case, accrued and unpaid interest thereon
to, but not including, the redemption date. At any time on or after the Par Call Date, at 100% of the principal amount of the notes being redeemed, plus accrued and unpaid interest to, but not including, the redemption date
|
|
Change of Control
Offer to Repurchase:
|
If a Change of Control (as defined in the Preliminary Prospectus Supplement) occurs, the ratings on the notes are lowered in respect of a Change of Control and
the notes are rated below investment grade by S&P Global Ratings Services and Fitch Ratings Inc., the Issuer must offer to repurchase the notes at a purchase price equal to 101% of the principal amount plus any accrued and unpaid interest
to, but excluding, the repurchase date
|
|
Day Count/Business
Day Convention:
|
30/360 Following, Unadjusted
|
|
Gross Proceeds (before
expenses and
underwriting
discount):
|
$897,768,000
|
|
Denominations:
|
$2,000 and integral multiples of $1,000 in excess thereof
|
|
Expected Ratings**:
|
S&P: A / Stable / Fitch: A / Stable
|
|
CUSIP / ISIN:
|
48251WAB0 / US48251WAB00
|
|
Joint Book-Running
Managers:
|
Morgan Stanley & Co. LLC
Goldman Sachs & Co. LLC
HSBC Securities (USA) Inc.
KKR Capital Markets LLC
UBS Securities LLC
|
|
Co-Managers:
|
Academy Securities, Inc.
Barclays Capital Inc.
Blaylock Van, LLC
BMO Capital Markets Corp.
BNP Paribas Securities Corp.
BNY Mellon Capital Markets, LLC
|
|
BofA Securities, Inc.
CIBC World Markets Corp.
Citigroup Global Markets Inc.
Credit Agricole Securities (USA) Inc.
Drexel Hamilton, LLC
Independence Point Securities LLC
ING Financial Markets LLC
J.P. Morgan Securities LLC
Loop Capital Markets LLC
Mischler Financial Group, Inc.
Mizuho Securities USA LLC
RBC Capital Markets, LLC
Santander US Capital Markets LLC
Scotia Capital (USA) Inc.
SG Americas Securities, LLC
Siebert Williams Shank & Co. LLC
SMBC Nikko Securities America, Inc.
Standard Chartered Bank
Stern Brothers & Co.
Strong Capital Markets, LLC
TD Securities (USA) LLC
Truist Securities, Inc.
U.S. Bancorp Investments, Inc.
Wells Fargo Securities, LLC
|
*Note: Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market are required to settle in one business
day, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes prior to the first business day before the delivery of the notes will be required, by virtue of the fact that the notes initially
settle in T+3, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the notes who wish to trade the notes during such period should consult their advisors.
**Note: A security rating is not a recommendation to buy, sell or hold securities and should be evaluated independently of any other rating. Each rating
is subject to revision or withdrawal at any time by the assigning rating organization.
The Issuer has filed a registration statement, including the Preliminary Prospectus Supplement and the accompanying prospectus, with the Securities and Exchange Commission
for the offering to which this communication relates. Before you invest, you should read the Preliminary Prospectus Supplement and the accompanying prospectus in that registration statement and other documents the Issuer has filed with the Securities
and Exchange Commission (the “SEC”) for more complete information about the Issuer and this offering. You may get these documents for free by visiting the SEC’s website at www.sec.gov. Alternatively, the joint book-running managers will arrange to
send you the prospectus supplement if you request it by calling Morgan Stanley & Co. LLC toll-free at 1-866-718-1649 or emailing prospectus@morganstanley.com; Goldman Sachs & Co. LLC toll-free at 1-866-471-2526 or emailing
prospectus-ny@ny.email.gs.com; HSBC Securities (USA) Inc. toll-free at 1-866-811-8049; KKR Capital Markets LLC toll-free at 1-212-230-9433; or UBS Securities LLC toll-free at 1-833-481-0269.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER
NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
EXHIBIT A-1
FORM OF OPINION TO BE PROVIDED BY
SIMPSON THACHER & BARTLETT LLP
[Attached]
EXHIBIT A-2
FORM OF DISCLOSURE LETTER TO BE PROVIDED BY
SIMPSON THACHER & BARTLETT LLP
[Attached]
EXHIBIT B
FORM OF OPINION TO BE PROVIDED BY
MAPLES AND CALDER GROUP – SPECIAL CAYMAN COUNSEL
[Attached]
EXHIBIT C
FORM OF CHIEF FINANCIAL OFFICER CERTIFICATE
KKR & CO. INC.
CHIEF FINANCIAL OFFICER’S CERTIFICATE
August [•], 2025
I, Robert H. Lewin, as Chief Financial Officer of KKR & Co. Inc., a Delaware corporation (the “Company”) who is issuing $[•] principal amount of its [•]% Senior Notes due 2035 (the “Notes”), do hereby certify, in my capacity as an officer of
the Company and not in my individual capacity, on behalf of the Company that:
1. I am providing this certificate in
connection with the offering (the “Offering”) of the Notes by the Company and related guarantees on the terms and subject to the conditions described in the final prospectus
supplement dated August [•], 2025 (the “Final Prospectus Supplement”).
2. I am knowledgeable with respect to the
accounting records and internal accounting practices, policies, procedures and controls of the Company and its consolidated subsidiaries and have had responsibility for financial and accounting matters with respect to the Company and its
consolidated subsidiaries.
3. I have read and am familiar with the
Final Prospectus Supplement and the financial statements and other financial and statistical information set forth or incorporated by reference therein, including the audited consolidated statements of the financial condition of the Company as of
December 31, 2024; the audited consolidated statements of operations, changes in equity and cash flows of the Company for the year ended December 31, 2024; the unaudited consolidated statements of the financial condition of the Company as of
March 31, 2025; the unaudited consolidated statements of operations, changes in equity and cash flows of the Company for the quarter ended March 31, 2025 and the unaudited condensed consolidated results of operations and segment operating results
for the six months ended June 30, 2025.
4. I have reviewed the circled information
contained on the attached Exhibit A and marked with an “A” (the “Tickmark A Circled Information”), which is included or incorporated by reference in the Final Prospectus
Supplement. As of the date hereof, the Tickmark A Circled Information is accurately derived from internal records or schedules prepared by management.
Capitalized terms used herein and not otherwise defined have the meanings assigned to them in the Underwriting Agreement, dated August [•], 2025, among
the Company, the other KKR Parties as defined therein and party thereto and the Underwriters named in Schedule I thereto.
This certificate is being furnished to the Underwriters of the Offering solely to assist them in conducting their investigation of the Company and its
subsidiaries in order to establish appropriate defenses under applicable securities laws or other similar laws relating to disclosure to investors, in connection with the Offering.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed and delivered this Officer’s Certificate on behalf of the Company as of the date first written above.
|
KKR & Co. Inc.
|
|||
|
By:
|
|||
|
Robert H. Lewin
|
|||
|
Chief Financial Officer
|
|||
Exhibit 4.2
SECOND SUPPLEMENTAL INDENTURE
Dated as of August 7, 2025
Supplementing that Certain
INDENTURE
Dated as of May 28, 2025
Among
KKR & CO. INC.
THE INITIAL GUARANTOR PARTY HERETO
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
5.100% Senior Notes due 2035
TABLE OF CONTENTS
|
Page
|
||
|
ARTICLE 1
|
||
|
Issuance of Securities
|
2 | |
|
Section 1.01.
|
Issuance of Notes; Principal Amount; Maturity; Title.
|
2
|
|
Section 1.02.
|
Interest.
|
3
|
|
Section 1.03.
|
Payment.
|
4
|
|
Section 1.04.
|
Relationship with Base Indenture.
|
4
|
|
Section 1.05.
|
Amendments to the Indenture.
|
4
|
|
ARTICLE 2
|
||
|
Definitions and Other Provisions of General Application
|
4 | |
|
Section 2.01.
|
Definitions.
|
4
|
|
ARTICLE 3
|
||
|
Security Forms
|
13 | |
|
Section 3.01.
|
Form Generally.
|
13
|
|
Section 3.02.
|
Form of Note.
|
13
|
|
Section 3.03.
|
Transfer and Exchange of Global Securities.
|
25
|
|
ARTICLE 4
|
||
|
Remedies
|
26 | |
|
Section 4.01.
|
Events of Default.
|
26
|
|
Section 4.02.
|
Waiver of Past Defaults.
|
27
|
|
Section 4.03.
|
Waiver of Usury, Stay or Extension Laws.
|
28
|
|
ARTICLE 5
|
||
|
Redemption of Securities
|
28 | |
|
Section 5.01.
|
Optional Redemption.
|
28
|
|
ARTICLE 6
|
||
|
Particular Covenants
|
29 | |
|
Section 6.01.
|
Liens.
|
29
|
|
Section 6.02.
|
Obligation to Offer to Repurchase Upon a Change of Control Repurchase Event.
|
29
|
|
Section 6.03.
|
Financial Reports.
|
30
|
i
|
ARTICLE 7
|
||
|
[Reserved.]
|
31 | |
|
ARTICLE 8
|
||
|
Supplemental Indentures
|
31 | |
|
Section 8.01.
|
Supplemental Indentures without Consent of Holders of Notes.
|
31
|
|
Section 8.02.
|
Supplemental Indentures with Consent of Holders of Notes.
|
32
|
|
ARTICLE 9
|
||
|
Defeasance
|
33 | |
|
Section 9.01.
|
Covenant Defeasance.
|
33
|
|
ARTICLE 10
|
||
|
Consolidation, Merger, Sale of Assets and Other Transactions
|
34 | |
|
Section 10.01.
|
Company and Guarantors May Merge or Transfer Assets on Certain Terms.
|
34
|
|
Section 10.02.
|
Successor Person Substituted.
|
35
|
|
ARTICLE 11
|
||
|
Guarantee of Securities
|
35 | |
|
Section 11.01.
|
Guarantee.
|
35
|
|
Section 11.02.
|
Additional Guarantors.
|
35
|
|
Section 11.03.
|
Waiver.
|
35
|
|
Section 11.04.
|
Guarantee of Payment.
|
36
|
|
Section 11.05.
|
No Discharge or Diminishment of Guarantee.
|
36
|
|
Section 11.06.
|
Defenses of Company Waived.
|
37
|
|
Section 11.07.
|
Continued Effectiveness.
|
37
|
|
Section 11.08.
|
Subrogation.
|
37
|
|
Section 11.09.
|
[Reserved.]
|
38
|
|
Section 11.10.
|
Release of Guarantor and Termination of Guarantee.
|
38
|
|
Section 11.11.
|
Limitation of Guarantors’ Liability.
|
39
|
|
Section 11.12.
|
No Obligation to Take Action Against the Company.
|
39
|
|
Section 11.13.
|
Execution and Delivery.
|
39
|
|
ARTICLE 12
|
||
|
Miscellaneous
|
40 | |
|
Section 12.01.
|
Execution as Supplemental Indenture.
|
40
|
|
Section 12.02.
|
Not Responsible for Recitals or Issuance of Notes.
|
40
|
|
Section 12.03.
|
Separability Clause.
|
40
|
|
Section 12.04.
|
Successors and Assigns.
|
40
|
|
Section 12.05.
|
Execution and Counterparts.
|
41
|
|
Section 12.06.
|
Governing Law.
|
41
|
|
Section 12.07.
|
FATCA
|
42 |
ii
|
Section 12.08.
|
Agreement by Holders to Treat Notes as Indebtedness for Tax Purposes.
|
42
|
iii
This Second Supplemental Indenture, dated as of August 7, 2025 (the “Second Supplemental Indenture”), among KKR & Co. Inc., a corporation duly organized and existing under
the laws of the State of Delaware, having its principal office at 30 Hudson Yards, New York, New York 10001 (the “Company”), KKR Group Partnership L.P., an exempted limited partnership formed and registered
under the laws of the Cayman Islands (the “Initial Guarantor”), and The Bank of New York Mellon Trust Company, N.A., as Trustee under the Base Indenture (as
hereinafter defined) and hereunder (the “Trustee”), supplements that certain Indenture, dated as of May 28, 2025, between the Company and the Trustee (the “Base Indenture”
and, subject to Section 1.04 hereof, together with this Second Supplemental Indenture, the “Indenture”).
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee the Base Indenture providing for the issuance from time to time of one or more series of the Company’s debt securities (herein and in the Base
Indenture called the “Securities”), the forms and terms of which are to be determined as set forth in Sections 201 and 301 of the Base Indenture;
Section 901 of the Base Indenture provides, among other things, that the Company and the Trustee may enter into indentures supplemental to the Base Indenture for, among other things, the purposes of (a) establishing
the form or terms of Securities of any series as permitted by Sections 201 and 301 of the Base Indenture, (b) adding one or more guarantees for the benefit of Holders of the Securities and (c) adding to or changing any of the provisions to the
Base Indenture in certain circumstances; and
The Company desires to create a series of Securities designated as its “5.100% Senior Notes due 2035” (the “Notes”) pursuant to the terms of this Second Supplemental Indenture.
The Company has duly authorized the execution and delivery of this Second Supplemental Indenture and the Notes to be issued from time to time, as provided for in the Indenture.
The Initial Guarantor has duly authorized its guarantee of the Notes (the “Guarantee”) and to provide therefor the Initial Guarantor has duly authorized the execution and
delivery of this Second Supplemental Indenture.
All things necessary have been done to make this Second Supplemental Indenture a valid and legally binding agreement of the Company, in accordance with its terms and to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee under the Indenture and duly issued by the Company, the valid and legally binding obligations of the Company.
All things necessary have been done to make the Guarantee, upon execution and delivery of this Second Supplemental Indenture, the valid and legally binding obligations
1
of the Initial Guarantor and to make this Second Supplemental Indenture a valid and legally binding agreement of the Initial Guarantor, in accordance with its terms.
ARTICLE 1
Issuance of Securities
Section 1.01. Issuance of Notes; Principal Amount; Maturity; Title.
(a) On August 7, 2025, the Company shall issue and deliver to the Trustee, and the Trustee shall authenticate, the Initial Notes substantially in the form set forth
in Section 3.02 below, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Base Indenture and this Second Supplemental Indenture, and with such letters, numbers, or
other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by
the Officer executing such Notes, as evidenced by the execution of such Notes.
(b) Pursuant to the terms hereof and Sections 201 and 301 of the Base Indenture, the Company hereby creates a series of Securities designated as the “5.100% Senior
Notes due 2035” of the Company (as amended or supplemented from time to time, that are issued under the Indenture, including both the Initial Notes and the Additional Notes (as defined below), if any, the “Notes”),
which Notes shall be deemed “Securities” for all purposes under the Base Indenture.
(c) The Initial Notes to be issued pursuant to the Indenture shall be issued and initially limited in aggregate principal amount to $900,000,000 and shall mature on
the Stated Maturity, unless the Notes are redeemed prior to that date as described in Article 5. The aggregate principal amount of Initial Notes Outstanding at any time may not exceed $900,000,000, except for Notes issued, authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes of the series pursuant to Sections 304, 305, 306, 906 or 1107 of the Base Indenture and except for any Notes which, pursuant to Section 303 of the Base
Indenture, are deemed never to have been authenticated and delivered.
(d) The Company may without the consent of the Holders, issue additional Notes hereunder as part of the same series and on the same terms and conditions (and having
the same Guarantors) and with the same CUSIP, ISIN and Common Code numbers as the Initial Notes initially issued, but may be offered at a different offering price or have a different issue date, initial interest accrual date or initial interest
payment date (“Additional Notes”); provided that if any Additional Notes are issued at a price that causes such Additional Notes to have “original issue discount”
within the meaning of Section 1273 of the United States Internal Revenue Code of 1986, as amended, and regulations of the United States Department of Treasury thereunder (the “Code”) or if any Additional
Notes are not otherwise fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes shall not have the same CUSIP, ISIN or Common Code number as the Initial Notes.
2
(e) The Notes shall be issued only in book-entry form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
Section 1.02. Interest.
(a) Subject to applicable law and subject to Article 7 of this Supplemental Indenture, interest on the Notes will accrue at an annual rate equal to 5.100%, from, and
including, the date specified on the face of such Note, or, if interest has already been paid, from the last date in respect of which interest has been paid or duly provided for to, but excluding, the next succeeding Interest Payment Date (as
defined below), the Stated Maturity or the Redemption Date, as the case may be. The amount of interest payable for any interest payment period will be computed on the basis of a 360-day year comprised of twelve 30-day months.
(b) The Company shall pay interest on the Notes semi-annually in arrears on February 7 and August 7 of each year (each, an “Interest
Payment Date”), commencing February 7, 2026, provided that the final Interest Payment Date of the Notes shall be the Stated Maturity.
(c) Interest shall be paid on each Interest Payment Date to the record Holders of the Notes as of the close of business on the Regular Record Date.
(d) Amounts due on the Stated Maturity or earlier Redemption Date or Repurchase Price Payment Date of the Notes will be payable at the corporate trust office of the
Trustee, initially at 500 Ross Street, Suite 625, Pittsburgh, PA 15262, Attention: BNY Corporate Trust, Transfers/Redemptions, except as otherwise provided in the Notes. The Company shall make payments of principal, premium, if any, interest,
Redemption Price or Repurchase Price (as defined below) in respect of the Notes in book-entry form to DTC in immediately available funds, while disbursement of such payments to owners of beneficial interests in Notes in book-entry form will be
made in accordance with the procedures of DTC and its participants in effect from time to time. The Trustee will initially act as Paying Agent for payments with respect to the Notes. The Company may at any time designate additional Paying Agents
or rescind the designation of any Paying Agent or approve a change in the office through which any Paying Agent acts, except that the Company shall be required to maintain a Paying Agent in each Place of Payment for the Notes. Neither the Company
nor the Trustee shall impose any service charge for any transfer or exchange of a Note. However, the Company may require Holders of the Notes to pay any taxes or other governmental charges in connection with a transfer or exchange of Notes. All
moneys paid by the Company to a Paying Agent for the payment of principal, premium, interest, Redemption Price or Repurchase Price on Notes which remain unclaimed at the end of two years after such principal, premium, interest, Redemption Price
or Repurchase Price has become due and payable will be repaid to the Company upon request, and the Holder of such Notes thereafter may look only to the Company for payment thereof.
(e) If any Interest Payment Date, Stated Maturity, earlier Redemption Date or Repurchase Price Payment Date falls on a day that is not a Business Day in The City of
3
New York, the Company shall make the required payment of principal, premium, if any, interest, Redemption Price or Repurchase Price with respect to the Notes on the next succeeding Business Day as if it were made on the date payment was due,
and no interest will accrue on the amount so payable for the period from and after that Interest Payment Date, Stated Maturity, earlier Redemption Date or Repurchase Price Payment Date, as the case may be, to such next succeeding Business Day.
Section 1.03. Payment.
All payments of principal of, the Redemption Price or Repurchase Price (if any) for and interest on the Notes will be payable in U.S. dollars.
Section 1.04. Relationship with Base Indenture.
The terms and provisions contained in the Base Indenture will constitute, and are hereby expressly made, a part of this Second Supplemental Indenture. However, to the extent any provision of the Base Indenture
conflicts with the express provisions of this Second Supplemental Indenture, the provisions of this Second Supplemental Indenture will govern and be controlling.
Section 1.05. Amendments to the Indenture.
(a) the definition of “Business Day” under Section 101 of the Base Indenture shall be amended and restated as follows:
“Business Day” means any day, other than a Saturday or Sunday, that is not a day on which banking institutions or trust companies in New York, New York are authorized or obligated by law, regulation or executive
order to close.
ARTICLE 2
Definitions and Other Provisions of General Application
Section 2.01. Definitions.
For all purposes of this Second Supplemental Indenture (except as herein otherwise expressly provided or unless the context of this Second Supplemental Indenture otherwise requires):
(a) any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Second Supplemental Indenture;
(b) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Second Supplemental Indenture as a whole and not to any particular
Article, Section or other subdivision;
(c) “including” means including without limitation;
(d) “dollars” and “$” refer to U.S. dollars; and
4
(e) unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements
and instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture.
The terms defined in this Section 2.01 (except as herein otherwise expressly provided or unless the context of this Second Supplemental Indenture otherwise requires) for all purposes of this Second Supplemental
Indenture and of any indenture supplemental hereto have the respective meanings specified in this Section 2.01. All other terms used in this Second Supplemental Indenture that are defined in the Base Indenture, either directly or by reference
therein (except as herein otherwise expressly provided or unless the context of this Second Supplemental Indenture otherwise requires), have the respective meanings assigned to such terms in the Base Indenture, as in force at the date of this
Second Supplemental Indenture as originally executed; provided that any term that is defined in both the Base Indenture and this Second Supplemental Indenture shall have the meaning assigned to such term
in this Second Supplemental Indenture.
“2061 Subordinated Notes” means the $500,000,000 aggregate principal amount of 4.625% Subordinated Notes due 2061 issued by KKR Group
Finance Co. IX LLC, an indirect finance subsidiary of the Company.
“2065 Subordinated Notes” means the $590,000,000 aggregate principal amount of 6.875% Subordinated Notes due 2065 issued by the
Company.
“Additional Notes” has the meaning specified in Section 1.01(d).
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the
Depositary or DTC, in each case to the extent applicable to such transaction and as in effect from time to time.
“Applicable Law” has the meaning specified in Section 12.07.
“Below Investment Grade Rating Event” means the ratings on the Notes are lowered in respect of a Change of Control and the Notes are rated below Investment Grade by both Rating
Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended
until the ratings are announced if during such 60 day period the rating of the Notes is under publicly announced consideration for possible downgrade by either of the Rating Agencies); provided that a Below Investment Grade Rating Event otherwise
arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change
of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was
the result, in whole or
5
in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade
Rating Event). The Company will request the Rating Agencies to make such confirmation in connection with any Change of Control and shall promptly certify to the Trustee as to whether or not such confirmation has been received or denied.
“Change of Control” means the occurrence of the following:
| i. |
the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the combined assets of the Credit Group
taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act or any successor provision), other than to a Continuing KKR Person; or
|
| ii. |
the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act or any successor provision), other
than a Continuing KKR Person, becomes the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act or any successor provision) of a majority of the controlling interests in (i) the Company or (ii) one or more Guarantors
that together hold all or substantially all of the assets of the Credit Group taken as whole.
|
For the avoidance of doubt, any event or action contemplated by, or taken in furtherance of consummating the transactions contemplated by and in compliance with, the Reorganization Agreement as in effect on the
initial issue date of the Notes will not constitute a Change of Control.
“Change of Control Offer” has the meaning specified in Section 6.02(a).
“Change of Control Repurchase Event” means the occurrence of a Change of Control and a Below Investment Grade Rating Event.
“Close of Business” means 5:00 p.m., New York City time.
“Code” has the meaning specified in Section 1.01(c).
“Commission” means the Securities and Exchange Commission or any successor entity.
“Continuing KKR Person” means, immediately prior to and immediately following any relevant date of determination, (i) an individual who (a) is an executive of the KKR Group,
(b) devotes substantially all of his or her business and professional time to the activities of the KKR Group and (c) did not become an executive of the KKR Group or begin devoting substantially all of his or her business and professional time to
the activities of the KKR Group in contemplation of a Change of Control, or (ii) any
6
Person in which any one or more of such individuals directly or indirectly, singly or as a group, holds a majority of the controlling interests.
“Covenant Defeasance” has the meaning specified in Section 9.01(b).
“Credit Group” means the Credit Parties and the Credit Parties’ direct and indirect Subsidiaries (to the extent of their economic ownership interest in such Subsidiaries) taken
as a whole.
“Credit Parties” means the Company and the Guarantors.
“Credit Party Jurisdiction” means a jurisdiction where a Credit Party is incorporated or considered to be a resident for tax purposes, if other than the United States.
“DTC” means The Depository Trust Company, a New York corporation.
“EDGAR” has the meaning specified in Section 6.03(a).
“Event of Default” has the meaning specified in Section 4.01(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Existing Indebtedness” means indebtedness incurred under (i) the Third Amended and Restated Credit Agreement dated as of July 3, 2024 among Kohlberg Kravis Roberts & Co.
L.P. and the Initial Guarantor, as borrowers, the other borrowers from time to time party thereto, the Company, as a guarantor, the other guarantors from time to time party thereto, the lenders party thereto, and HSBC Bank USA, National
Association, as administrative agent; (ii) the Fourth Amended and Restated 5-Year Revolving Credit Agreement dated as of April 4, 2024 among KKR Capital Markets Holdings L.P. and certain of its subsidiaries, as borrowers, the lenders party
thereto, and Mizuho Bank, Ltd., as administrative agent; and (iii) the 364-Day Revolving Credit Agreement dated as of April 2, 2025 among KKR Capital Markets Holdings L.P. and certain of its subsidiaries, as borrowers, the lenders party thereto,
and Mizuho Bank Ltd., as administrative agent; and in the case of each of clauses (i), (ii) and (iii) above, any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures, notes,
debentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or
indenture that alters the maturity or interest rate thereof, provided that the aggregate principal amount of Existing Indebtedness outstanding at any one time shall not exceed $2.750 billion.
“FATCA Withholding Tax” shall mean any Tax withheld or deducted pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471
through 1474 of the Code (or any amended or successor provisions that are substantively comparable), any regulations or agreements thereunder or official interpretations thereof, or any intergovernmental agreement between the United States
7
and another jurisdiction facilitating the implementation thereof (or any law, regulation or other official guidance implementing such an intergovernmental agreement).
“FinCo Notes” means, collectively, the FinCo Senior Notes and the 2061 Subordinated Notes.
“FinCo Senior Notes” means, collectively, senior notes issued by various indirect finance subsidiaries of the Company as follows: (i) the $500,000,000 aggregate principal amount of 5.500% Senior Notes due 2043 issued by KKR Group Finance Co. II
LLC, (ii) the $1,000,000,000 aggregate principal amount of 5.125% Senior Notes due 2044 issued by KKR Group Finance Co. III LLC, (iii) the ¥10,300,000,000 aggregate principal amount of 1.595% Senior Notes due 2038 issued by KKR Group Finance
Co. IV LLC, (iv) the €650,000,000 aggregate principal amount of 1.625% Senior Notes due 2029 issued by KKR Group Finance Co. V LLC, (v) the $750,000,000 aggregate principal amount of 3.750% Senior Notes due 2029 issued by KKR Group Finance Co.
VI LLC, (vi) the $500,000,000 aggregate principal amount of 3.625% Senior Notes due 2050 issued by KKR Group Finance Co. VII LLC, (vii) the $750,000,000 aggregate principal amount of 3.500% Senior Notes due 2050 issued by KKR Group Finance Co.
VIII LLC, (viii) the $750,000,000 aggregate principal amount of 3.250% Senior Notes due 2051 issued by KKR Group Finance Co. X LLC, (ix) the ¥36,400,000,000 aggregate principal amount of 1.054% Senior Notes due 2027, ¥4,900,000,000 aggregate
principal amount of 1.244% Senior Notes due 2029, ¥6,200,000,000 aggregate principal amount of 1.437% Senior Notes due 2032, ¥7,500,000,000 aggregate principal amount of 1.553% Senior Notes due 2034, ¥5,500,000,000 aggregate principal amount of
1.795% Senior Notes due 2037, ¥44,700,000,000 aggregate principal amount of 1.428% Senior Notes due 2028, ¥1,800,000,000 aggregate principal amount of 1.614% Senior Notes due 2030, ¥1,500,000,000 aggregate principal amount of 1.939% Senior
Notes due 2033, ¥3,000,000,000 aggregate principal amount of 2.312% Senior Notes due 2038, ¥4,500,000,000 aggregate principal amount of 2.574% Senior Notes due 2043, ¥6,000,000,000 aggregate principal amount of 2.747% Senior Notes due 2053,
¥44,600,000,000 aggregate principal amount of 1.559% Senior Notes due 2029, ¥1,000,000,000 aggregate principal amount of 1.762% Senior Notes due 2031, ¥26,200,000,000 aggregate principal amount of 2.083% Senior Notes due 2034, ¥10,000,000,000
aggregate principal amount of 2.719% Senior Notes due 2044 and ¥9,600,000,000 aggregate principal amount of 3.008% Senior Notes due 2054 issued by KKR Group Finance Co. XI LLC, and (x) the $750,000,000 aggregate principal amount of 4.850%
Senior Notes due 2032 issued by KKR Group Finance Co. XII LLC.
“Fitch” means Fitch Ratings Inc. or any successor thereto.
“Global Atlantic Indebtedness” means, collectively, the (i) $2,550,000,000 aggregate principal amount of senior notes, with weighted average interest rate of 5.67%
8
per annum, issued by Global Atlantic (Fin) Company, an indirect subsidiary of the Company (“GA FinCo”), (ii) $1,350,000,000 aggregate principal amount of subordinated notes, with weighted average interest rate of 6.14% per annum, issued by GA
FinCo, and (iii) the Credit Agreement, dated as of May 7, 2024, among Global Atlantic Limited (Delaware), GA FinCo, the guarantors party thereto from time to time, the lenders from time to time party thereto, Wells Fargo Bank, N.A., as
administrative agent, and the other agents and arrangers party thereto.
“Guarantee” has the meaning specified in the fifth recital of this Second Supplemental Indenture and more particularly means any Guarantee made by each of the Guarantors as set
for in Article 11 hereof.
“Guarantors” means each of (i) the Initial Guarantor and (ii) in the future, any New KKR Entity that becomes a Guarantor pursuant to Article 11 hereof, but in each case
excluding Persons who cease to be Guarantors in accordance with this Indenture.
“Initial Notes” means Notes in an aggregate principal amount of $900,000,000 initially issued under this Second Supplemental Indenture in accordance with Section 1.01(c).
“Insignificant Guarantor” means a Guarantor (or a group of Guarantors taken together) that would not, on a combined and consolidated basis and taken as a whole together with
all then-existing Non-Guarantor Entities designated pursuant to clause (ii) of the definition of Non-Guarantor Entity set forth in Section 11.10, constitute a Significant Subsidiary.
“Interest Payment Date” has the meaning specified in Section 1.02(b).
“Investment Grade” means a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch) and BBB- or better by S&P (or its equivalent
under any successor rating categories of S&P) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Company’s control, the equivalent investment grade credit rating from any Rating Agency selected by the
Company as a replacement Rating Agency).
“KCM Indebtedness” means the indebtedness under the credit agreements referenced in clauses (ii) and (iii) of the definition of the Existing Indebtedness.
“KFN Notes” means, collectively, the (i) $500,000,000 aggregate principal amount of 5.500% Notes due 2032, (ii) $120,000,000 aggregate principal amount of 5.200% Senior Notes
due 2033, (iii) $70,000,000 aggregate principal amount of 5.400% Senior Notes due 2033 and (iv) $258.5 million aggregate principal amount of Junior Subordinated Notes which mature between 2036 and 2037, each issued by KKR Financial Holdings LLC,
an indirect subsidiary of the Company.
“KKR Group” means KKR Group Partnership, the direct and indirect parents (including, without limitation, general partners) of KKR Group Partnership (the “Parent Entities”), any direct or indirect subsidiaries of the Parent Entities or KKR Group
9
Partnership, the general partner or similar controlling entities of any investment or vehicle that is managed, advised or sponsored by the KKR Group (“KKR Fund”) and any other entity through which any of
the foregoing directly or indirectly conduct its business, but shall exclude any company in which a KKR Fund has an investment.
“KKR Group Partnership” means KKR Group Partnership L.P., the Initial Guarantor.
“New KKR Entity” means any direct or indirect subsidiary of the Company other than (i) a then-existing Guarantor, (ii) any Person in which the Company directly or indirectly owns its interest through one or
more then-existing Guarantors, (iii) any Person through which the Company directly or indirectly owns its interests in one or more then-existing Guarantors, or (iv) any
Person if such Person’s guarantee of the obligations of the Company pursuant to the Notes and the Indenture would be reasonably likely to result in material and adverse tax consequences to the Company, the Initial Guarantor, or any other
Guarantor as determined by the Company or the Initial Guarantor in good faith.
“Non-Guarantor Entity” has the meaning specified in Section 11.10(c).
“Non-Guarantor Limitation” has the meaning specified in Section 11.10(c).
“Notes” has the meaning specified in Section 1.01(b).
“Par Call Date” has the meaning specified in Section 5.01(a).
“Permitted Jurisdictions” has the meaning specified in Section 10.01(b)(i).
“Permitted Liens” means (a) liens on voting stock or profit participating equity interests of any Subsidiary existing at the time such entity becomes a direct or indirect
Subsidiary of the Company or is merged into a direct or indirect Subsidiary of the Company (provided such liens are not created or incurred in connection with such transaction and do not extend to any
other Subsidiary), (b) statutory liens, liens for taxes or assessments or governmental liens not yet due or delinquent or which can be paid without penalty or are being contested in good faith, (c) other liens of a similar nature as those
described in subclauses (a) and (b) above, and (d) liens granted under Existing Indebtedness.
“Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity, including a government or political
subdivision or an agency or instrumentality thereof.
“Prospectus Supplement” means the Company’s prospectus supplement, dated August 4, 2025, relating to the Notes.
“Rating Agency” means:
| i. |
each of Fitch and S&P; and
|
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| ii. |
if either of Fitch or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning
of Section 3(a)(62) the Exchange Act selected by the Company as a replacement agency for Fitch or S&P, or both, as the case may be.
|
“Registrar” means the Security Registrar for the Notes, which shall initially be The Bank of New York Mellon Trust Company, N.A., or any successor entity thereof, subject to
replacement as set forth in the Base Indenture.
“Regular Record Date” for interest payable in respect of any Note on any Interest Payment Date means the January 23 or July 23 immediately preceding the relevant Interest
Payment Date (whether or not a Business Day).
“Relevant Jurisdiction” means the United States, any Credit Party Jurisdiction, and any Successor Person Jurisdiction.
“Reorganization Agreement” means the Reorganization Agreement, dated as of October 8, 2021, by and among the Company, KKR Holdings L.P., KKR Management LLP, KKR Associates
Holdings L.P. and the other parties thereto.
“Repurchase Price” has the meaning specified in Section 6.02(a).
“Repurchase Price Payment Date” has the meaning specified in Section 6.02(c).
“Revolving Credit Facility” means the senior unsecured multicurrency revolving credit facility provided pursuant to the Third
Amended and Restated Credit Agreement, dated as of July 3, 2024, among Kohlberg Kravis Roberts & Co. L.P., KKR Group Partnership, the guarantors party thereto from time to time, the lenders party thereto from time to time, and HSBC Bank USA,
National Association, as administrative agent.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., or any successor thereto.
“Significant Subsidiary” means a “significant subsidiary” (as such term is defined in Rule 1-02(w) of Regulation S-X under the Securities Act or any successor provision) of the
Company.
“Stated Maturity” means August 7, 2035.
“Successor Person” has the meaning specified in Section 10.01(b)(i).
“Successor Person Jurisdiction” means a jurisdiction where a Successor Person is incorporated or considered to be a resident for tax purposes, if other than the United States.
11
“Substantially All Merger” means a merger or consolidation of one or more Credit Parties with or into another Person that would, in one or a series of related transactions,
result in the transfer or other disposition, directly or indirectly, of all or substantially all of the combined assets of the Credit Group taken as a whole to a Person that is not within the Credit Group immediately prior to such transaction.
“Substantially All Sale” means a sale, assignment, transfer, lease or conveyance to any other Person in one or a series of related transactions, directly or indirectly, of all
or substantially all of the combined assets of the Credit Group taken as a whole to a Person that is not within the Credit Group immediately prior to such transaction.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve
System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the
Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities—Treasury constant
maturities—Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15
exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two
yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the Par
Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life,
the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the
relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third Business Day preceding the Redemption Date H.15 TCM or any successor designation is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the
semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as
applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding
the Par Call Date and one with a maturity date following the Par Call
12
Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury
securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the
bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States
Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
ARTICLE 3
Security Forms
Section 3.01. Form Generally.
(a) The Notes shall be in substantially the form set forth in Section 3.02 of this Article 3, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by the Base Indenture and this Second Supplemental Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply
with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistent herewith, be determined by the Officer executing such Notes, as evidenced by the execution thereof. All Notes shall be in book-entry
form.
(b) The Notes shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officer of the
Company executing such Notes, as evidenced by the execution of such Notes.
(c) Upon their original issuance, the Notes shall be issued in the form of one or more Global Securities in definitive, book-entry form without interest coupons.
Each such Global Security shall be duly executed by the Company, authenticated and delivered by the Trustee and shall be registered in the name of DTC as Depositary, or its nominees, and deposited with the Trustee, as custodian for DTC.
Beneficial interests in the Global Securities will be shown on, and transfers will only be made through, the records maintained by DTC and its participants.
Section 3.02. Form of Note.
[FORM OF FACE OF NOTE]
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS DEFINED IN THE INDENTURE) OR A
NOMINEE THEREOF. THIS GLOBAL SECURITY IS EXCHANGEABLE
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FOR SECURITIES REGISTERED IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR ITS NOMINEE ONLY IN LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT
IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED BELOW) OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
[FORM OF 5.100% SENIOR NOTE DUE 2035]
KKR & CO. INC.
5.100% SENIOR NOTE DUE 2035
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No.
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Principal Amount $
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CUSIP NO. 48251WAB0
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ISIN NO. US48251WAB00
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KKR & Co. Inc., a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company,” which term includes any Successor Person
under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of U.S. dollars ($ ), or such other
principal amount as shall be set forth in the Schedule of Increases and Decreases in Note attached hereto, on August 7, 2035 (the “Maturity Date”) and to pay interest thereon, from August 7, 2025, or from
the most recent Interest
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Payment Date to which interest has been paid or duly provided for to but excluding the next Interest Payment Date, which shall be February 7 and August 7 of each year, commencing February 7, 2026, at the per annum rate of 5.100% (the “Note Interest Rate”), until the principal hereof is paid or made available for payment.
For the purposes of this Note, the term “Business Day” means any day, other than a Saturday or Sunday, that is not a day on which banking institutions or trust companies in New
York, New York are authorized or obligated by law, regulation or executive order to close.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note is registered at the close of business
on the Regular Record Date for such interest, which shall be the January 23 or July 23 immediately preceding the relevant Interest Payment Date (whether or not a Business Day). Except as otherwise provided in the Indenture, any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Notes not less than 10 days prior to the Special Record Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Notes may be listed, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
Payment of principal of, and premium, if any, and interest on this Note will be made at the Trustee, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the
payment of public and private debts. With respect to Global Securities, the Company will make such payments by wire transfer of immediately available funds to DTC, or its nominee, as registered owner of the Global Securities. With respect to
certificated Notes, the Company will make such payments, subject to surrender of such Note at the Trustee, except in the case of installments of interest, by wire transfer of immediately available funds to a United States Dollar account
maintained in New York, New York to each Holder of an aggregate principal amount of Notes in excess of U.S. $5,000,000 that has furnished wire instructions in writing to the Trustee no later than 15 days prior to the relevant payment date. If a
Holder of a certificated Note (i) does not furnish such wire instructions as provided in the preceding sentence or (ii) holds U.S. $5,000,000 or less aggregate principal amount of Notes, the Company will make such payments by mailing or causing
to be mailed a check to such Holder’s registered address.
The Notes constitute the direct, unconditional, unsecured and unsubordinated general obligations of the Company and shall at all times rank equally in right of payment with all existing and future unsecured and
unsubordinated indebtedness, liabilities and other obligations of the Company or the relevant Guarantor, including (i) the Company’s and the Initial Guarantor’s respective guarantees of the FinCo Senior Notes and (ii) the Company’s obligations as
a guarantor and the Initial Guarantor’s obligations as a
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borrower under the Revolving Credit Facility, rank senior in right of payment to all existing and future subordinated indebtedness, liabilities and other obligations of the Company or the relevant Guarantor, including (i) the Company’s
obligations as the issuer and the Initial Guarantor’s obligations as a guarantor of the 2065 Subordinated Notes and (ii) the Company’s and the Initial Guarantor’s respective guarantees of the 2061 Subordinated Notes, be effectively subordinated
to all existing and future secured indebtedness of the Company or the relevant Guarantor, to the extent of the value of the assets securing such indebtedness; and be structurally subordinated in right of payment to all existing and future
indebtedness (including the FinCo Notes, the KFN Notes, the Global Atlantic Indebtedness and the KCM Indebtedness), liabilities and other obligations of each subsidiary of the Company or the relevant Guarantor that does not guarantee the Notes.
The Securities are not redeemable prior to the Maturity Date, except as set forth on the reverse of this Note and will not be subject to any sinking fund.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual or electronic signature, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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KKR & Co. Inc.
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By:
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Name:
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Title:
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Attest:
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee
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By:
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Authorized Signatory
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[FORM OF REVERSE OF NOTE]
1. Indenture. This Note is one of a duly authorized issue of securities of the Company designated as its “5.100% Senior
Notes due 2035” (herein called the “Notes”), issued under a Second Supplemental Indenture, dated as of August 7, 2025 (the “Second Supplemental Indenture”), to an
indenture, dated as of May 28, 2025 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Base Indenture” and herein with the Second Supplemental Indenture,
collectively, the “Indenture”), among the Company, the Initial Guarantor named therein and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “Trustee,”
which term includes any successor trustee under the Indenture), to which reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Initial Guarantor, the Trustee
and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. The aggregate principal amount of the Initial Notes Outstanding at any time may not exceed $900,000,000 in aggregate principal
amount, except for, or in lieu of, other Notes of the series pursuant to Sections 304, 305, 306, 906 or 1107 of the Base Indenture and except for any Notes which, pursuant to Section 303 of the Base Indenture, are deemed never to have been
authenticated and delivered. The Second Supplemental Indenture pursuant to which this Note is issued provides that Additional Notes may be issued thereunder.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. In the event of a conflict or inconsistency between this Note and the Indenture, the
provisions of the Indenture shall govern.
2. Optional Redemption. In the manner and under the circumstances set forth in the Indenture, the Company may, at its
option, redeem the Notes on notice given at least 10 days but not more than 60 days before the Redemption Date to each Holder of such Notes to be redeemed:
(a) Prior to the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption Price
(expressed as a percentage of the principal amount and rounded to three decimal places) equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed discounted to the
Redemption Date (assuming the Notes being redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the
Redemption Date, and
(ii) 100% of the principal amount of the Notes being redeemed,
plus, in either case, accrued and unpaid interest on the principal amount of the Notes being redeemed to, but not including, the Redemption Date.
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(b) On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of
the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
(c) The Company shall give the Trustee notice of the Redemption Price with respect to any redemption pursuant to the preceding paragraph as soon as practicable after
the calculation thereof and the Trustee shall have no responsibility for such calculation.
(d) Any notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a
securities offering or other corporate transaction.
3. [Reserved.]
4. Global Security. If this Note is a Global Security, then, in the event of a deposit or withdrawal of an interest in this
Note, including an exchange, transfer, redemption, repurchase or conversion of this Note in part only, the Trustee, as custodian of the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with
the Applicable Procedures.
5. Defaults and Remedies. If an Event of Default shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the Indenture. Upon payment of the amount of principal so declared due and payable, all obligations of the Company in respect of the payment of the principal of and interest
on the Notes shall terminate.
No Holder of Notes shall have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver, assignee, trustee, liquidator or sequestrator (or
similar official) or for any other remedy hereunder (except actions for payment of overdue principal of, and premium, if any, or interest on such Notes in accordance with its terms), unless (i) such Holder has previously given written notice to
the Trustee of a continuing Event of Default, specifying an Event of Default, as required under the Indenture; (ii) the Holders of not less than 25% in aggregate principal amount of the Outstanding Notes shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee under the Indenture; (iii) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request; (iv) the Trustee has failed to institute any such proceeding for 60 days after its receipt of such notice, request and offer of indemnity; and (v) no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Notes, it being understood and intended that no one or more of such Holders shall have any right
in any manner whatever by virtue of, or by availing of, any provision of the Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such
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Holders or to enforce any right under the Indenture, except in the manner provided in the Indenture and for the equal and ratable benefit of all of such Holders.
The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal of, and premium, if any, or interest hereon, on or after the respective due dates
expressed or provided for herein.
6. Amendment, Supplement and Waiver. The Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture at any time by the Company and the Trustee with the written consent of the Holders of at least a majority in
aggregate principal amount of the Outstanding Notes. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Outstanding Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder
and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note or such other Note. Certain
modifications or amendments to the Indenture require the consent of the Holder of each Outstanding Note affected.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair (without the consent of the Holder hereof) the obligation of the Company, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this Note at the times, places and rate, and in the coin or currency, herein prescribed.
7. Registration and Transfer. As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note is registerable on the Security Register. Upon surrender for registration of transfer of this Note at the office or agency of the Company in a Place of Payment, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of like tenor and principal amount. As provided in the Indenture and subject to certain limitations therein set forth,
at the option of the Holder, this Note may be exchanged for one or more new Notes of any authorized denominations and of like tenor and principal amount, upon surrender of this Note at such office or agency. Upon such surrender by the Holder, the
Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of like tenor and principal amount. Every Note presented or
surrendered for registration of transfer or for exchange shall be duly endorsed (if so required by the Company or the Trustee), or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum
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sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, a Guarantor or the Trustee may treat the Person in whose name such Note is
registered as the owner thereof for all purposes (except as otherwise provided in the Indenture), whether or not such Note be overdue, and neither the Company, the Guarantors, the Trustee nor any agent of the Company, a Guarantor or the Trustee
shall be affected by notice to the contrary.
8. Guarantee. As expressly set forth in the Indenture, payment of this Note is jointly and severally and fully and
unconditionally guaranteed by the Guarantors that have become and continue to be Guarantors pursuant to the Indenture. Guarantors may be released from their obligations under the Indenture and their Guarantees under the circumstances specified in
the Indenture.
9. Governing Law. THE INDENTURE, THIS SECURITY AND THE GUARANTEES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE COMPANY, THE GUARANTORS AND THE TRUSTEE AGREE THAT ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, AND THE COMPANY, THE GUARANTORS AND
HOLDERS OF THE SECURITIES AGREE THAT ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE SECURITIES, MAY BE INSTITUTED, BROUGHT AND ENFORCED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (OR, OTHER
THAN WITH RESPECT TO A CAUSE OF ACTION ARISING UNDER THE SECURITIES ACT, IF SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH ACTION, SUIT OR PROCEEDING, THE SUPREME COURT OF NEW YORK COUNTY (COMMERCIAL DIVISION) IN THE STATE OF NEW YORK OF THE
STATE OF NEW YORK), WHICH WILL BE THE EXCLUSIVE FORUM FOR ANY SUCH ACTIONS, SUITS OR PROCEEDINGS, EXCEPT THAT ANY ACTION, SUIT OR PROCEEDING ASSERTING A CAUSE OF ACTION ARISING UNDER THE EXCHANGE ACT MAY ALSO BE BROUGHT AND ENFORCED IN ANY
FEDERAL DISTRICT COURT OF THE UNITED STATES, WHICH WILL BE THE EXCLUSIVE FORUM FOR SUCH ACTIONS, SUITS OR PROCEEDINGS. HOLDERS OF THE SECURITIES WILL BE DEEMED TO HAVE CONSENTED TO THE JURISDICTION OF SUCH COURTS AND HAVE WAIVED ANY OBJECTION
THAT SUCH COURTS REPRESENT AN INCONVENIENT FORUM FOR ANY SUCH SUIT, ACTION OR PROCEEDING.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM (= tenant in common)
TEN ENT (= tenants by the entireties (Cust))
JT TEN (= joint tenants with right of survivorship and not as tenants in common)
UNIF GIFT MIN ACT (= under Uniform Gifts to Minors Act )
Additional abbreviations may also be used though not in the above list.
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[SCHEDULE OF INCREASES AND DECREASES IN NOTE
KKR & CO. INC.
5.100% Senior Note due 2035
The initial principal amount of this Note is $ . The following increases or decreases in this Note have been made:
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Date
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Amount of decrease in Principal Amount of this Note
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Amount of increase in Principal Amount of this Note
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Principal Amount of this Note following such decrease or increase
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Signature of authorized officer of Trustee]1
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1 Insert for Global Securities only
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Section 3.03. Transfer and Exchange of Global Securities.
(a) The transfer and exchange of Global Securities or beneficial interests therein shall be effected through the Depositary, in accordance with the Indenture
(including applicable restrictions on transfer set forth in the Indenture and in the Global Security) and the procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Security to another Global Security shall
deliver to the Security Registrar a duly completed Assignment Form in the form attached to the Global Security, any applicable certifications or opinions required by the Assignment Form and a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the Global Security. The Security Registrar shall, in accordance with such instructions, instruct the Depositary to
credit to the account of the Person specified in such instructions a beneficial interest in the Global Security and to debit the account of the Person making the transfer the beneficial interest in the Global Security being transferred.
(b) If the proposed transfer is a transfer of a beneficial interest in one Global Security to a beneficial interest in another Global Security, the Security
Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Security to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred,
and the Security Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Security from which such interest is being transferred.
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ARTICLE 4
Remedies
Section 4.01. Events of Default.
(a) “Event of Default” means, wherever used herein with respect to the Notes, any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental
body):
(i) an Event of Default pursuant to Section 501 of the Base Indenture;
(ii) the Company’s failure to pay any interest on the Notes when due and payable continued for 30 days; or
(iii) the Company’s failure to pay the Repurchase Price when due in connection with a Change of Control Repurchase Event.
(iv) any Credit Party defaults in the performance of, or breaches, any of its covenants and agreements in respect of the Notes contained in this
Indenture or in the Notes (other than those referred to in (1), (2) or (3) of Section 501 of the Base Indenture), and such default or breach continues for a period of 90 days after the notice specified in Article V of the Base Indenture;
(v) the Company or any Guarantor (other than an Insignificant Guarantor), pursuant to or within the meaning of the Bankruptcy Law (as defined below):
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in an involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) files a petition in bankruptcy or answer or consent seeking reorganization or relief;
(F) consents to the filing of such petition or the appointment of or taking possession by a Custodian; or
(G) takes any comparable action under any foreign laws relating to insolvency;
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(vi) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Guarantor (other than an Insignificant Guarantor) in an involuntary case, or adjudicates the
Company or any Guarantor (other than an Insignificant Guarantor) insolvent or bankrupt;
(B) appoints a Custodian of the Company or any Guarantor (other than an Insignificant Guarantor) or for all or substantially all of the
property of the Company or any Guarantor (other than an Insignificant Guarantor); or
(C) orders the winding-up or liquidation of the Company or any Guarantor (other than an Insignificant Guarantor) (or any similar relief is
granted under any foreign laws),
and the order or decree remains unstayed and in effect for 90 days; or
(vii) except as otherwise provided herein, a Guarantee of any Guarantor (other than an Insignificant Guarantor) ceases to be in full force and effect or
is declared to be null and void and unenforceable or such Guarantee is found to be invalid or a Guarantor (other than an Insignificant Guarantor) denies its liability under its Guarantee (other than by reason of release of such Guarantee in
accordance with the terms of this Indenture).
Section 4.02. Waiver of Past Defaults.
(a) Section 512 of the Base Indenture shall not apply to the Notes, and, with respect to the Notes, any reference to Section 512 in the Base Indenture shall instead
be deemed to refer to this Section 4.02.
(b) The Holders of not less than a majority in aggregate principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any past
Default hereunder with respect to the Notes and its consequences, except a default
(i) in the payment of the principal of or interest on any Note; or
(ii) in respect of a covenant or provision hereof or of the Base Indenture which under Article 8 hereof or under Article IX of the Base Indenture cannot
be modified or amended without the consent of the Holder of each Outstanding Note affected, provided that there had been paid or deposited with the Trustee a sum sufficient to pay all amounts due to the
Trustee and to reimburse the Trustee for any and all fees, expenses and disbursements advanced by the Trustee, its agents and its counsel incurred in connection with such default or Event of Default.
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(c) Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Second Supplemental Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 4.03. Waiver of Usury, Stay or Extension Laws.
(a) Section 512 of the Base Indenture shall not apply to the Notes, and, with respect to the Notes, any reference to Section 512 in the Base Indenture shall instead
be deemed to refer to this Section 4.03.
(b) Each of the Company and the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and the
Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 5
Redemption of Securities
Section 5.01. Optional Redemption.
(a) Prior to May 7, 2035 (three months prior to the Stated Maturity) (the “Par Call Date”), the Company may redeem the Notes
at its option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of the principal amount and rounded to three decimal places) equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed discounted to the
Redemption Date (assuming the Notes being redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the
Redemption Date, and
(ii) 100% of the principal amount of the Notes being redeemed,
plus, in either case, accrued and unpaid interest on the principal amount of the Notes being redeemed to, but not including, the Redemption Date.
(b) On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of
the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
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(c) The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
ARTICLE 6
Particular Covenants
Section 6.01. Liens.
The Credit Parties shall not create, assume, incur or guarantee any indebtedness for money borrowed that is secured by a pledge, mortgage, lien or other encumbrance (other than Permitted Liens) on any voting stock or
profit participating equity interests of their respective Subsidiaries (to the extent of their ownership of such voting stock or profit participating equity interests) or any entity that succeeds (whether by merger, consolidation, sale of assets
or otherwise) to all or any substantial part of the business of any of such Subsidiaries, without providing that the Notes (together with, if the Credit Parties shall so determine, any other indebtedness of, or guarantee by, the Credit Parties
ranking equally with the Notes and existing as of the closing of the offering of the Notes or thereafter created) will be secured equally and ratably with or prior to all other indebtedness secured by such pledge, mortgage, lien or other
encumbrance on the voting stock or profit participating equity interests of any such entities. This Section 6.01 shall not limit the ability of the Credit Parties to incur indebtedness or other obligations secured by liens on assets other than
the voting stock or profit participating equity interests of their respective Subsidiaries.
Section 6.02. Obligation to Offer to Repurchase Upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs, unless the Company has exercised its option to redeem the Notes pursuant to Article 5 of this Second Supplemental
Indenture, the Company will make an offer to each Holder of Notes to repurchase all or any part of that Holder’s Notes (the “Change of Control Offer”) at a repurchase price in cash equal to 101% of the
aggregate principal amount of Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to, but excluding, the date of purchase (the “Repurchase Price”).
(b) In connection with any Change of Control related to a Change of Control Repurchase Event and any particular reduction in the ratings on the Notes, the Company
shall request from the Rating Agencies each such Rating Agency’s written confirmation that such reduction in the ratings on the Notes was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in
respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of any Below Investment Grade Rating Event). The Company shall promptly certify to the Trustee as to whether or not such
confirmation has been received or denied.
(c) Within 30 days following any Change of Control Repurchase Event or, at the Company’s option, prior to any Change of Control, but after the public announcement
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of the Change of Control, the Company will give notice to each Holder of Notes, with a written copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and
offering to repurchase Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given (the “Repurchase Price Payment Date”).
The notice shall, if given prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as
a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.
(d) On the Change of Control Repurchase Event payment date, the Company will, to the extent lawful:
(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the Repurchase Price in respect of all Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an officers’ certificate stating the aggregate principal
amount of Notes being purchased by the Company.
The Paying Agent will promptly mail to each Holder of Notes properly tendered the Repurchase Price for the Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of any Notes surrendered; provided that each new Note representing any unpurchased portion of any Notes surrendered will be in a principal amount of $2,000 and integral multiples of $1,000 in excess
thereof.
(e) Notwithstanding the foregoing, the Company will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third
party makes an offer in respect of the Notes in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes properly tendered and not withdrawn under its
offer.
Section 6.03. Financial Reports.
(a) Section 704 of the Base Indenture shall apply to the reports, information, and documents delivered under this Section 6.03.
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(i) For so long as the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide (or cause
its Affiliates to provide) to the Trustee, unless available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (or successor system) (“EDGAR”), within 15 days after the Company
files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe)
which the Company may file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. The Trustee may conclusively presume, and shall incur no liability in such presumption, that the Company has not filed any such reports,
information, documents and other reports with the Commission that are not available on EDGAR unless and until it shall have received written notice from the Company to the contrary.
(ii) Delivery of such reports, information and documents to the Trustee shall be for informational purposes only and the Trustee’s receipt of such shall
not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of the covenants contained in the Indenture (as to which the Trustee will be
entitled to conclusively rely upon an Officer’s Certificate). The Trustee shall have no obligation to determine if and when the Company’s information is available on EDGAR and the Trustee shall have no obligation to obtain any reports that are
posted on EDGAR. The Company shall either provide the Trustee with prompt written notification at such time that the Company ceases to be a reporting company or continue to provide the Trustee the information as set forth in this section.
ARTICLE 7
[Reserved.]
ARTICLE 8
Supplemental Indentures
Section 8.01. Supplemental Indentures without Consent of Holders of Notes.
For the purposes of the Base Indenture and this Second Supplemental Indenture, no amendment to cure any ambiguity, defect or inconsistency in this Second Supplemental Indenture, the Base Indenture or the Notes made
solely to conform this Second Supplemental Indenture, the Base Indenture or the Notes to the Description of the Notes contained in the Company’s Prospectus Supplement to the extent that such provision in the Description of the Notes was intended
to be a verbatim recitation of a provision of this Second Supplemental Indenture, the Base Indenture or the Notes, shall be deemed to adversely affect the interests of the Holders of any Notes.
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Section 8.02. Supplemental Indentures with Consent of Holders of Notes.
(a) Section 902 of the Base Indenture shall not apply to the Notes, and, with respect to the Notes, any reference to Section 902 in the Base Indenture shall instead
be deemed to refer to this Section 8.02.
(b) With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes affected by such supplemental indenture
(including consents obtained in connection with a tender offer or exchange for the Notes), by Act of said Holders delivered to the Company, the Guarantors and the Trustee, the Company, the Guarantors and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of such Notes under the Indenture;
provided, however, no such supplemental indenture shall, without the consent of the Holder of each Outstanding Note affected thereby:
(i) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Note;
(ii) reduce the principal amount of any Note which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 of the Base Indenture, or reduce the rate of or extend the time of payment of interest on any Note;
(iii) subordinate the Notes or any Note Guarantee to any other obligation of the Company or the applicable Guarantor;
(iv) reduce any premium payable upon the redemption of or change the date on which any Note may or must be redeemed;
(v) change the coin or currency in which the principal of or premium, if any, or interest on any Note is payable;
(vi) change the date on which any Note may or must be redeemed;
(vii) impair the right of any Holder to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or a Repurchase Price Payment Date, as applicable);
(viii) reduce the percentage in principal amount of the Outstanding Notes the consent of whose Holders is required for modification or amendment of this
Second Supplemental Indenture or the Base Indenture or the consent of whose Holders is required for any waiver (of compliance with certain provisions of the Base Indenture or this Second Supplemental Indenture or certain defaults thereunder and
hereunder and their consequences) provided for in the Base Indenture and this Second Supplemental Indenture;
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(ix) modify any of the provisions of this Section 8.02 or Section 512 or Section 1005 of the Base Indenture, except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Note affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to the “Trustee” and concomitant changes in this Section 8.02 and Section 1005 of the Base Indenture,
or the deletion of this proviso, in accordance with the requirements of Sections 611 and 901(7) of the Base Indenture;
(x) modify the terms of any Guarantee in a manner adverse to the Holders of the Notes; or
(xi) modify clauses (a) through (j) above.
(c) It shall not be necessary for any Act of Holders under this Section 8.02 to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
(d) A supplemental indenture which changes or eliminates any covenant or other provision of the Indenture which has expressly been included solely for the benefit of
one or more particular series of Securities other than the Notes, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of the Notes.
(e) In addition, the Holders of at least a majority in aggregate principal amount of the Outstanding Notes may, on behalf of the Holders of all Notes, and subject to
and in accordance with the provisions of Section 1005 of the Base Indenture, waive compliance with the Credit Parties’ covenants described under Sections 6.01 and 6.03 of this Second Supplemental Indenture and Article VIII and Section 1402 of the
Base Indenture (other than any covenant, a modification to which under clause (e) of this Section 8.02 would require the consent of the Holder of each Outstanding Note affected thereby).
ARTICLE 9
Defeasance
Section 9.01. Covenant Defeasance.
(a) Section 1303 of the Base Indenture shall not apply to the Notes, and, with respect to the Notes, any reference to Section 1303 in the Base Indenture shall
instead be deemed to refer to this Section 9.01.
(b) Upon the Company’s exercise of its option, if any, to have Section 1303 of the Base Indenture applied to the Notes, or if Section 1303 of the Base Indenture
shall otherwise apply to the Notes, (1) the Company and the Guarantors shall be released from their respective obligations and any covenants provided pursuant to Article 6 of this
33
Second Supplemental Indenture and Section 301(18), Section 801, Section 901(1) or Section 901(12) and Article 11 of this Second Supplemental Indenture for the benefit of the Holders of the Notes and (2) the occurrence of any event specified in
Section 501(4) and Section 501(8) shall be deemed not to be or result in an Event of Default, in each case with respect to the Notes and the related Guarantees as provided in Section 1303 of the Base Indenture on and after the date the conditions
set forth in Section 1304 of the Base Indenture are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to the Notes and Guarantees
thereof, each of the Company and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section, whether directly or indirectly by reason of any reference
elsewhere herein or in the Base Indenture to any such Section or by reason of any reference in any such Section to any other provision herein or in the Base Indenture or in any other document, but the remainder of the Base Indenture, this Second
Supplemental Indenture and such Notes and Guarantees thereof shall be unaffected thereby.
ARTICLE 10
Consolidation, Merger, Sale of Assets and Other Transactions
Section 10.01. Company and Guarantors May Merge or Transfer Assets on Certain Terms.
(a) Section 801 of the Base Indenture shall not apply to the Notes, and, with respect to the Notes, any reference to Section 801 in the Base Indenture shall instead
be deemed to refer to this Section 10.01.
(b) None of the Credit Parties shall be a party to a Substantially All Merger or participate in a Substantially All Sale, unless:
(i) such Credit Party is the surviving Person, or the Person formed by or surviving such Substantially All Merger or to which such Substantially All
Sale has been made (the “Successor Person”) is organized under the laws of the United States or any state thereof, or, other than with respect to the Company, Belgium, Bermuda, Canada, Cayman Islands,
France, Germany, Gibraltar, Ireland, Italy, Luxembourg, the Netherlands, Switzerland, the United Kingdom or British Crown Dependencies, a member country of the Organisation for Economic Co-operation and Development or any political subdivision of
any of the foregoing (together with the United States or any state thereof, the “Permitted Jurisdictions”), and has expressly assumed by supplemental indenture all of the obligations of such Credit Party
under this Indenture;
(ii) immediately after giving effect to such transaction, no Default or Event of Default has occurred and is continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction and any supplemental
indenture relating thereto comply with this Indenture and that all conditions
34
precedent provided for in this Indenture relating to such transaction have been complied with.
(c) For as long as any Notes remain outstanding each of the Credit Parties must be organized under the laws of a Permitted Jurisdiction.
Section 10.02. Successor Person Substituted.
(a) Section 802 of the Base Indenture shall not apply to the Notes, and, with respect to the Notes, any reference to Section 802 in the Base Indenture shall instead
be deemed to refer to this Section 10.02.
(b) Upon the consummation of a transaction contemplated by and consummated in accordance with Section 10.01, the Successor Person shall succeed to, and be
substituted for, and may exercise every right and power of, the applicable Credit Party under this Indenture, with the same effect as if such Successor Person had been an original party to this Indenture, and, except in the case of a lease, the
applicable Credit Party shall be released from all of its liabilities and obligations under this Indenture and the Notes (including the Guarantees).
ARTICLE 11
Guarantee of Securities
Section 11.01. Guarantee.
Each Guarantor hereby jointly and severally and fully and unconditionally guarantees to each Holder of Notes and to the Trustee on behalf of each such Holder, the due and punctual payment in full of the principal of
and premium, if any, and interest on the Notes and all other amounts payable by the Company under the Indenture when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption
or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Notes (collectively, the “Obligations”), in accordance with the terms of the Notes and this
Indenture. If the Company shall fail to pay when due any Obligations, for whatever reason, each Guarantor shall be jointly and severally obligated to pay in cash the same promptly. An Event of Default under this Indenture or the Notes shall
entitle the Holders of the Notes to accelerate the Obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company.
Section 11.02. Additional Guarantors.
The Company and the Initial Guarantor shall cause each New KKR Entity (other than a Non-Guarantor Entity) to become a Guarantor pursuant to this Indenture and provide a Guarantee in respect of the Notes.
Section 11.03. Waiver.
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To the fullest extent permitted by applicable law, each Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or any of the Holders exhaust any right or
take any action against the Company or any other Person, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to the
Notes or the indebtedness evidenced thereby and all demands whatsoever, and covenants that no Guarantee will be discharged in respect of the Notes except by complete performance of the Obligations contained in the Notes and in this Article.
Section 11.04. Guarantee of Payment.
Each Guarantee shall constitute a guarantee of payment when due and not a guarantee of collection. The Guarantors hereby agree that, in the event of a default in payment of principal of or premium, if any, or
interest on the Notes, whether at its Stated Maturity, by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of any Note, subject to the terms and
conditions set forth in this Indenture, directly against the Guarantors to enforce the Guarantee without first proceeding against the Company.
Section 11.05. No Discharge or Diminishment of Guarantee.
Subject to Section 11.10, the obligations of each of the Guarantors hereunder shall be absolute and unconditional and not be subject to any reduction, limitation, termination or impairment for any reason (other than
the payment in full in cash of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the Securities, this Indenture or the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each of the Guarantors hereunder shall
not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder of the Notes to assert any claim or demand or to enforce any remedy under this Indenture or the Notes, any other guarantee or any other agreement, by
any waiver, modification or indulgence of any provision thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, by any release of any other Guarantor pursuant to Section 11.10 or by any other act or
omission or delay to do any other act that may or might in any manner or to any extent vary the risk of any Guarantor or that would otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the payment in full in
cash of all the Obligations); provided, however, that notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantors, increase the principal amount
of the Notes, or increase the interest rate thereon, change any redemption provisions thereof (including any change to increase any premium payable upon redemption thereof) or change the Stated Maturity of any payment thereon, or increase the
principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration or the maturity thereof pursuant to Section 502 of the Base Indenture.
36
Section 11.06. Defenses of Company Waived.
To the extent permitted by applicable law, each of the Guarantors waives any defense based on or arising out of any defense of the Company or any other Guarantor or the unenforceability of the Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the Company, other than final payment in full in cash of the Obligations. Each of the Guarantors waives any defense arising out of any such election even though such
election operates to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of each of the Guarantors against the Company or any security.
Section 11.07. Continued Effectiveness.
Subject to Section 11.10, each of the Guarantors further agrees that its Guarantee with respect to the Notes hereunder shall remain in full force and effect and continue to be irrevocable notwithstanding any petition
filed by or against the Company for liquidation or reorganization, the Company becoming insolvent or making an assignment for the benefit of creditors or a receiver or trustee being appointed for all or any significant part of the Company’s
assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Obligation is rescinded or must otherwise be
restored or returned by the Trustee or any Holder of the Notes, whether as a “voidable preference,” “fraudulent transfer” upon bankruptcy or reorganization of the Company or otherwise, all as though such payment or performance had not been made,
until the date upon which the entire Obligation, if any, and interest on the Notes has been, or has been deemed pursuant to the provisions of this Indenture to have been paid in full. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned on the Notes, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed paid only by such amount paid and not so rescinded, reduced, restored or returned.
Section 11.08. Subrogation.
In furtherance of the foregoing and not in limitation of any other right of each of the Guarantors by virtue hereof, upon the failure of the Company to pay any Obligation when and as the same shall become due, each
of the Guarantors hereby promises to and will, upon receipt of written demand by the Trustee or any Holder of the Notes, forthwith pay, or cause to be paid, to the Holders in cash the amount of such unpaid Obligations, and thereupon the Holders
shall, assign (except to the extent that such assignment would render a Guarantor a “creditor” of the Company within the meaning of Section 547 of Title 11 of the United States Code as now in effect or hereafter amended or any comparable
provision of any successor statute) the amount of the Obligations owed to it and paid by such Guarantor pursuant to this Guarantee to such Guarantor, such assignment to be pro rata to the extent the Obligations in question were discharged by such
Guarantor, or make such other disposition thereof as such Guarantor shall direct (all without recourse to the Holders, and without any representation or warranty by the Holders). If (a) a Guarantor shall make payment to the Holders of all or any
part of the
37
Obligations and (b) all the Obligations and all other amounts payable under this Indenture shall be paid in full, the Trustee will, at such Guarantor’s request, execute and deliver to such Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Obligations resulting from such payment by such Guarantor.
Section 11.09. [Reserved.]
Section 11.10. Release of Guarantor and Termination of Guarantee.
A Guarantor shall, upon the occurrence of any of the following events, be automatically and unconditionally released and discharged from all obligations under this Indenture and its Guarantee without any action
required on the part of the Trustee or any Holder; provided that such Guarantor would not, immediately after such release and discharge, be required to become a Guarantor pursuant to Section 11.02:
(a) at any time such Guarantor is sold or disposed of (whether by merger, consolidation or the sale of all or substantially all of its assets) to an entity that is
not required to become a Guarantor, if such sale or disposition is otherwise in compliance with this Indenture;
(b) such Guarantor is designated a Non-Guarantor Entity in accordance with this Indenture; or
(c) the Company effects a Defeasance or Covenant Defeasance in accordance with Article XIII of the Base Indenture or Article 9 hereof.
The Company may designate any Person as a “Non-Guarantor Entity” if (i) such Person is directly or indirectly wholly owned by one or more of the Credit Parties and (ii) such
Person, together with all then-existing Non-Guarantor Entities designated pursuant to this clause (ii) on a combined and consolidated basis and taken as a whole, would not constitute a Significant Subsidiary (the foregoing, the “Non-Guarantor Limitation”). The Company may also, from time to time, remove the designation of any Person as a Non-Guarantor Entity and must remove the designation as to one or more Non-Guarantor Entities
designated pursuant to clause (ii) of the immediately preceding sentence to the extent as of the end of any fiscal quarter such Non-Guarantor Entities exceed the Non-Guarantor Limitation. Any such designation or removal by the Company shall be
evidenced to the Trustee by promptly filing with the Trustee a Company Resolution giving effect to such designation or removal, and in the case of a designation, a certificate of the chief financial officer of the Company (or, in his or her
absence, the principal executive officer, principal accounting officer or treasurer of the Company) certifying that such designation complied with the foregoing provisions. The Company shall promptly file with the Trustee a notice of any such
release of a Guarantor in accordance with this Indenture.
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The Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a request of the Company accompanied by an Officers’ Certificate certifying as to the compliance with this Section.
Section 11.11. Limitation of Guarantors’ Liability.
Each Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the Guarantee by such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Title 11 of the United States Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantor. To effectuate the foregoing intention, the
Holders and such Guarantor hereby irrevocably agree that the obligations of such Guarantor under this Indenture and its Guarantee shall be limited to the maximum aggregate amount which, after giving effect to all other contingent and fixed
liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of, any other Guarantor in respect of the obligations of such Guarantor under its Guarantee or pursuant to its contribution
obligations under this Indenture, will result in the obligations of such Guarantor under its Guarantee not constituting such fraudulent transfer or conveyance.
Each Guarantee is expressly limited so that in no event, including the acceleration of the Maturity of the Notes, shall the amount paid or agreed to be paid in respect of interest on the Securities (or fees or other
amounts deemed payment for the use of funds) exceed the maximum permissible amount under applicable law, as in effect on the date hereof and as subsequently amended or modified to allow a greater amount of interest (or fees or other amounts
deemed payment for the use of funds) to be paid under such Guarantee. If for any reason the amount in respect of interest (or fees or other amounts deemed payment for the use of funds) required by a Guarantee exceeds such maximum permissible
amount, the obligation to pay interest under such Guarantee (or fees or other amounts deemed payment for the use of funds) shall be automatically reduced to such maximum permissible amount and any amounts collected by any Holder of the Notes in
excess of the permissible amount shall be automatically applied to reduce the outstanding principal on such Security.
Section 11.12. No Obligation to Take Action Against the Company.
Neither the Trustee, any Holder nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or take any other steps under any security for the Obligations or against the Company or any
other Person or any property of the Company or any other Person before the Trustee, such Holder or such other Person is entitled to demand payment and performance by any or all Guarantors of their liabilities and obligations under their
Guarantee.
Section 11.13. Execution and Delivery.
To evidence its Guarantee set forth in this Article 11, the Initial Guarantor hereby agrees that this Second Supplemental Indenture shall be executed on behalf of the Initial
39
Guarantor by an Officer of such Guarantor, and in the case of any New KKR Entity that becomes a Guarantor in accordance with this Indenture, such New KKR Entity’s Guarantee shall be evidenced by the execution and delivery on behalf of such
New KKR Entity of a supplemental indenture hereto by an Officer of such New KKR Entity.
Each Guarantor hereby agrees that its Guarantee set forth in this Article 11 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
If an Officer whose signature is on this Second Supplemental Indenture no longer holds that office at the time the Trustee authenticates the Notes, the Guarantee shall be valid nevertheless.
The delivery of the Notes by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.
ARTICLE 12
Miscellaneous
Section 12.01. Execution as Supplemental Indenture.
This Second Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Base Indenture and, as provided in the Base Indenture, this Second Supplemental Indenture forms a part
thereof.
Section 12.02. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company and the Guarantors, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture or of the Securities or the Guarantees. The Trustee shall not be accountable for the use or
application by the Company of the Notes or the proceeds thereof.
Section 12.03. Separability Clause.
In case any provision in this Second Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 12.04. Successors and Assigns.
All covenants and agreements in this Second Supplemental Indenture by the Company and the Guarantors shall bind their respective successors and assigns, whether so expressed or not. All agreements of the Trustee in
this Second Supplemental Indenture shall bind its successors and assigns, whether so expressed or not.
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Section 12.05. Execution and Counterparts.
This Second Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and all such counterparts shall together constitute but one and the same
instrument. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Second Supplemental Indenture or any document to be signed in connection with this Second Supplemental Indenture shall be deemed
to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a
paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
Section 12.06. Governing Law.
This Second Supplemental Indenture, the Notes and the Guarantees shall be governed by, and construed in accordance with, the laws of the State of New
York. The Company, the Guarantors and the Trustee agree that any legal suit, action or proceeding arising out of or relating to the Indenture, and the Company, the Guarantors and Holders of the Notes agree that any legal suit, action or
proceeding arising out of or relating to the Notes, may be instituted, brought and enforced in the United States District Court for the Southern District of New York (or, other than with respect to a cause of action arising under the Securities
Act, if such court does not have jurisdiction over such action, suit or proceeding, the Supreme Court of New York County (Commercial Division) in the State of New York of the State of New York), which will be the exclusive forum for any such
actions, suits or proceedings, except that any action, suit or proceeding asserting a cause of action arising under the Exchange Act may also be brought and enforced in any federal district court of the United States, which will be the
exclusive forum for such actions, suits or proceedings. Holders of the Notes will be deemed to have consented to the jurisdiction of such courts and have waived any objection that such courts represent an inconvenient forum for any such suit,
action or proceeding.
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Section 12.07. FATCA
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”), the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law (and shall timely pay the amounts so
withheld or deducted to the applicable governmental authority) for which The Bank of New York Mellon shall not have any liability, except in cases of gross negligence or willful misconduct. Each of the Company and the Trustee agrees to reasonably
cooperate and, at the reasonable request of the other, to provide the other with such information as each may have in its possession that is necessary to enable the determination of whether any payments hereunder are subject to FATCA Withholding
Tax.
Section 12.08. Agreement by Holders to Treat Notes as Indebtedness for Tax Purposes.
Each Holder of the Notes will, by accepting the Notes or a beneficial interest therein, agree and shall be deemed to have agreed that the Holder or beneficial owner intends that the Notes constitute indebtedness, and
will treat the Notes as indebtedness, for all U.S. federal, state and local tax purposes.
[Signature page to follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed all as of the day and year first above written.
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KKR & Co. Inc.
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By:
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/s/ Robert H. Lewin
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Name:
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Robert H. Lewin | ||
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Title:
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Chief Financial Officer | ||
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KKR Group Partnership L.P.
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By:
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KKR Group Holdings Corp., as its general partner | ||
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By:
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/s/ Robert H. Lewin
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Name:
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Robert H. Lewin | ||
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Title:
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Chief Financial Officer | ||
[Signature Page to Second Supplemental Indenture]
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The Bank of New York Mellon Trust Company, N.A., as Trustee
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By:
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/s/ Ann M. Dolezal
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Name:
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Ann M. Dolezal | ||
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Title:
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Vice President | ||
[Signature Page to Second Supplemental Indenture]
Exhibit 5.1
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Simpson Thacher & Bartlett llp
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425 lexington avenue
new york, ny 10017-3954
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telephone: +1-212-455-2000
facsimile: +1-212-455-2502
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Direct Dial Number
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E-mail Address
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KKR & Co. Inc.
30 Hudson Yards
New York, NY 10001
Ladies and Gentlemen:
We have acted as counsel to KKR & Co. Inc., a Delaware corporation (the “Company”), and KKR Group Partnership L.P., an exempted limited
partnership formed under the law of the Cayman Islands (the “Guarantor”), in connection with the Registration Statement on Form S-3 (the “Registration Statement”) filed by the Company and the Guarantor with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company from time to time of an indeterminate aggregate initial offering price of, among other things, debt securities, which may be either senior or
subordinated (collectively, the “Securities”) and the issuance by the Guarantor of the Guarantee (as defined below) with respect to the Securities.
We have examined the Registration Statement; the Underwriting Agreement dated
August 4, 2025 (the “Underwriting Agreement”), among the Company, the Guarantor and the underwriters named therein pursuant to which such underwriters have agreed to purchase $900,000,000 aggregate principal amount of 5.100% Senior Notes
due 2035 (the “Notes”)
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Simpson Thacher & Bartlett llp
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KKR & Co. Inc.
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August 7, 2025
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issued by the Company and unconditionally guaranteed by the Guarantor; the Indenture, dated as of May 28, 2025 (the “Base Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the Second Supplemental Indenture, dated as of August 7, 2025 (the “Second Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Company, the Guarantor and the Trustee; duplicates of the global notes representing the
Notes and the guarantee whose terms are set forth in the Indenture (the “Guarantee”). In addition, we have examined, and have relied as to matters of fact upon, originals, or duplicates or certified or conformed copies, of such records, agreements,
documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company and the Guarantor and have made such other investigations as we have deemed relevant and necessary in
connection with the opinions hereinafter set forth.
In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity
of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We also have assumed
that the Indenture is the valid and legally binding obligation of the Trustee.
In rendering the opinions set forth below, we have assumed further that (1) the Guarantor is validly existing and in good standing under the law of
the Cayman Islands and has duly authorized, executed, issued and delivered the Underwriting Agreement, the Indenture and its Guarantee, as applicable, in accordance with its organizational documents and the law of the Cayman Islands, (2) the
execution, issuance, delivery and performance by the Guarantor of the
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Simpson Thacher & Bartlett llp
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KKR & Co. Inc.
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-3-
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August 7, 2025
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Underwriting Agreement, the Indenture and its Guarantee, as applicable, do not constitute a breach or violation of its organizational documents or violate the law of the
Cayman Islands or any other applicable jurisdiction (except that no such assumption is made with respect to the federal law of the United States, the law of the State of New York or the Delaware General Corporation Law) and (3) the execution,
issuance, delivery and performance by the Company and the Guarantor of the Underwriting Agreement, the Indenture, the Notes and its Guarantee, as applicable, do not constitute a breach or default under any agreement or instrument which is binding
upon the Company or the Guarantor.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
| 1. |
Assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the provisions of the Underwriting Agreement, the Notes will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with their terms.
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| 2. |
Assuming due authentication of the Notes by the Trustee and upon payment for and delivery of the Notes in accordance with the Underwriting Agreement, the Guarantee will constitute a valid and legally
binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms.
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Our opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied
covenant of good faith and fair dealing and (iv) the effects of the possible judicial application of foreign laws or foreign governmental or judicial action affecting creditors’ rights. In addition, we express no opinion as to the validity, legally
binding effect or enforceability of (i) the waiver of rights and defenses contained in Section 115 and Section 514 of the Base Indenture and Section 11.06 of the Second Supplemental Indenture
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Simpson Thacher & Bartlett llp
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KKR & Co. Inc.
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August 7, 2025
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or (ii) Section 110 and Section 12.03 of the Base Indenture and the Second Supplemental Indenture, respectively, relating to the separability of provisions of the Indenture.
In connection with Section 112 and Section 12.06 of the Base Indenture and the Second Supplemental Indenture, respectively, whereby the parties submit
to the jurisdiction of the courts of the United States of America located in the Borough of Manhattan in the City of New York and the Southern District of New York, respectively, we note the limitations of 28 U.S.C. Sections 1331 and 1332 on subject
matter jurisdiction of the U.S. federal courts. In connection with the provisions of Section 112 and Section 12.06 of the Base Indenture and the Second Supplemental Indenture, respectively, which relate to forum selection of the courts of the
Borough of Manhattan in the City of New York and the Southern District of New York, respectively (including, without limitation, any waiver of any objection to venue or any objection that a court is an inconvenient forum), we note that under
N.Y.C.P.L.R. Section 510 a New York State court may have discretion to transfer the place of trial, and under 28 U.S.C. Section 1404(a) a U.S. District Court has discretion to transfer an action from one U.S. federal court to another. We also note
that the recognition and enforcement in New York State courts or U.S. federal courts sitting in the State of New York of a foreign judgment obtained against the Company or the Guarantor is subject to the Uniform Foreign Money—Judgments Recognition
Act (53 C.P.L.R. §5301 et seq.).
We do not express any opinion herein concerning any law other than the law of the State of New York, the federal law of the United States and the
Delaware General Corporation Law.
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Simpson Thacher & Bartlett llp
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KKR & Co. Inc.
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August 7, 2025
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We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated August 7, 2025 and to the use
of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.
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Very truly yours,
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/s/ Simpson Thacher & Bartlett LLP
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SIMPSON THACHER & BARTLETT LLP
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Exhibit 5.2
Our ref:
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KKR Group Partnership L.P.
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
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7 August 2025
KKR Group Partnership L.P.
We have acted as counsel as to Cayman Islands law to KKR Group Partnership L.P. (the "Partnership"), a Cayman Islands exempted limited partnership, and to KKR Group Holdings
Corp. (the "General Partner"), a foreign company incorporated or established in the State of Delaware, U.S.A., in connection with the registration statement of KKR & Co. Inc. ("KKR & Co") on Form S-3, including all amendments or supplements thereto, filed with the United States Securities and Exchange Commission (the "Commission") under the United States
Securities Act of 1933, as amended (the "Securities Act") (including its exhibits, the "Registration Statement") for the purposes of, registering with the Commission
under the Act, the offering of certain securities of KKR & Co and certain of its subsidiaries, which may be guaranteed by the Partnership (each, a "Guarantee")
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Documents Reviewed
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We have reviewed originals, copies, drafts or conformed copies of the following documents:
| 1.1 |
The certificate of registration dated 14 August 2019 of the General Partner as a foreign company under Part 9 of the Companies Act (As Revised) (the "Companies Act").
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| 1.2 |
The certificate of registration of the Partnership dated 23 July 2008 and the certificate of change of name of the Partnership dated 31 December 2019 as an exempted limited partnership under section 9 of the Exempted Limited
Partnership Act (As Revised) (the "Act").
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| 1.3 |
The statement signed on behalf of KKR Fund Holdings GP Limited pursuant to section 9(1) of the Act relating to the Partnership and the statements filed under section 10 of the Act.
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| 1.4 |
The fourth amended and restated limited partnership agreement of the Partnership dated 6 August 2024 between, among others, the General Partner and each of the limited partners named therein (the "Partnership
Agreement").
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| 1.5 |
A certificate of good standing in relation to the General Partner issued by the Registrar of Companies dated 6 August 2025.
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| 1.6 |
A certificate of good standing in relation to the Partnership issued by the Registrar of Exempted Limited Partnerships dated 6 August 2025 (together with the certificate of good standing in relation to the General Partner, referred to
as the "Certificates of Good Standing").
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| 1.7 |
A certificate of the General Partner in respect of this opinion letter (the "General Partner's Certificate").
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| 1.8 |
The Registration Statement.
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| 2 |
Assumptions
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The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman
Islands which are in force on the date of this opinion letter. In giving the following opinions, we have relied (without further verification) upon the completeness and accuracy, as at the date of this opinion letter, of the General Partner's
Certificate and the Certificates of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
| 2.1 |
The existence and good standing of the General Partner as a Delaware corporation and the due authorisation, execution and unconditional delivery of the Partnership Agreement by the General Partner and by the General Partner on behalf
of the Partnership, in each case as a matter of Delaware law and all other relevant laws (other than the laws of the Cayman Islands).
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| 2.2 |
The Partnership Agreement and each Guarantee have been or, as the case may be, will be authorised and duly executed and unconditionally delivered by or on behalf of all relevant parties in accordance with all relevant laws.
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| 2.3 |
The Partnership Agreement has not been amended, varied, waived or supplemented.
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| 2.4 |
The choice of Cayman Islands law as the governing law of the Partnership Agreement has been made in good faith.
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| 2.5 |
Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals, and translations of documents provided to us are complete and accurate.
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| 2.6 |
All signatures, initials and seals are genuine.
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| 2.7 |
Each party has the capacity, power, authority and legal right under all relevant laws and regulations (other than, with respect to the General Partner and the Partnership, the laws and regulations of the Cayman Islands) to enter into,
execute, unconditionally deliver and perform their respective obligations under each Guarantee.
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| 2.8 |
There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands law) binding on the General Partner or the Partnership prohibiting or restricting each of them from entering into and performing
their obligations under each Guarantee.
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| 2.9 |
No monies paid to or for the account of any party under the Partnership Agreement or any property received or disposed of by any party to the Partnership Agreement in each case in connection with the Partnership Agreement or the
consummation of the transactions contemplated thereby represent or will represent proceeds of criminal conduct or criminal property or terrorist property (as defined in the Proceeds of Crime Act (As Revised) and the Terrorism Act (As
Revised), respectively).
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| 2.10 |
At all times the affairs of each of the General Partner and the Partnership have been conducted in accordance with the Partnership Agreement.
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| 2.11 |
As a matter of all relevant laws (other than the laws of the Cayman Islands), the transactions in respect of the Guarantees do not breach any conditions contained within the Partnership Agreement.
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| 2.12 |
All necessary consents have been given, actions taken and conditions met or validly waived pursuant to the Partnership Agreement and the transactions contemplated in respect of the Guarantees do not breach or conflict with any other
agreement into which the Partnership or the General Partner has entered prior to the date of this opinion (other than the Partnership Agreement).
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| 2.13 |
There is nothing under any law (other than the laws of the Cayman Islands) which would or might affect the opinions set out below.
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| 2.14 |
The Court Register constitutes a complete record of the proceedings before the Grand Court as at the time of the Litigation Search (as those terms are defined below).
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| 3 |
Opinions
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Based upon, and subject to, the foregoing assumptions and the qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
| 3.1 |
The General Partner has been duly registered as a foreign company under Part 9 of the Companies Act and is in good standing with the Registrar of Companies under the laws of the Cayman Islands.
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| 3.2 |
The Partnership has been duly formed and registered and is validly existing and in good standing with the Registrar of Exempted Limited Partnerships as an exempted limited partnership under the laws of the Cayman Islands.
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| 3.3 |
Upon the authorisation, execution and unconditional delivery of a Guarantee by the General Partner acting in its capacity as general partner of the Partnership, such Guarantee will have been duly executed and delivered by the
Partnership and will constitute the legal, valid and binding obligations of the Partnership enforceable in accordance with its terms.
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| 4 |
Qualifications
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The opinions expressed above are subject to the following qualifications:
| 4.1 |
The obligations assumed by the Partnership under the Partnership Agreement will not necessarily be enforceable in all circumstances in accordance with their terms. In particular:
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| (a) |
enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation, readjustment of debts or moratorium or other laws of general application relating to, protecting, or affecting the rights of creditors and/or
contributories;
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| (b) |
enforcement may be limited by general principles of equity. For example, equitable remedies such as specific performance may not be available, inter alia, where damages are considered to be an adequate remedy;
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| (c) |
some claims may become barred under relevant statutes of limitation or may be or become subject to defences of set off, counterclaim, estoppel and similar defences;
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| (d) |
where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable in the Cayman Islands to the extent that performance would be illegal under the laws of that jurisdiction;
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| (e) |
the courts of the Cayman Islands have jurisdiction to give judgment in the currency of the relevant obligation and statutory rates of interest payable upon judgments will vary according to the currency of the judgment. If the
Partnership becomes insolvent or the partners are made subject to an insolvency proceeding, the courts of the Cayman Islands will require all debts to be proved in a common currency, which is likely to be the "functional currency" of the
Partnership determined in accordance with applicable accounting principles. Currency indemnity provisions have not been tested, so far as we are aware, in the courts of the Cayman Islands;
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| (f) |
arrangements that constitute penalties will not be enforceable;
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| (g) |
enforcement may be prevented by reason of fraud, coercion, duress, undue influence, misrepresentation, public policy or mistake or limited by the doctrine of frustration of contracts;
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| (h) |
provisions imposing confidentiality obligations may be overridden by compulsion of applicable law or the requirements of legal and/or regulatory process;
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| (i) |
the courts of the Cayman Islands may decline to exercise jurisdiction in relation to substantive proceedings brought under or in relation to the Partnership Agreement in matters where they determine that such proceedings may be tried
in a more appropriate forum;
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| (j) |
any provision in a document which is governed by Cayman Islands law purporting to impose obligations on a person who is not a party to such document (a "third party")
is unenforceable against that third party. Any provision in a document which is governed by Cayman Islands law purporting to grant rights to a third party is unenforceable by that third party, except to the extent that such document
expressly provides that the third party may, in its own right, enforce such rights (subject to and in accordance with the Contracts (Rights of Third Parties) Act (As Revised) of the Cayman Islands);
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| (k) |
any provision of a document which is governed by Cayman Islands law which expresses any matter to be determined by future agreement may be void or unenforceable; and
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| (l) |
we reserve our opinion as to the enforceability of the relevant provisions of the Partnership Agreement to the extent that they purport to grant exclusive jurisdiction as there may be circumstances in which the courts of the Cayman
Islands would accept jurisdiction notwithstanding such provisions.
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| 4.2 |
Applicable court fees will be payable in respect of the enforcement of the Partnership Agreement.
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| 4.3 |
Cayman Islands stamp duty may be payable if the original Partnership Agreement are brought to or executed in the Cayman Islands.
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| 4.4 |
Notwithstanding registration, an exempted limited partnership is not a separate legal person distinct from its partners. An exempted limited partnership must act through its general partner and all agreements and contracts must be
entered into by or on behalf of the general partner (or any agent or delegate of the general partner) on behalf of the exempted limited partnership. References in this opinion to the "Partnership" taking any action (including executing
any agreements) should be construed accordingly.
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| 4.5 |
To maintain the General Partner and the Partnership in good standing with the Registrar of Companies and the Registrar of Exempted Limited Partnerships under the laws of the Cayman Islands, annual filing fees must be paid and returns
made to the Registrar of Companies and the Registrar of Exempted Limited Partnerships within the time frame prescribed by law.
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| 4.6 |
Under the laws of the Cayman Islands any term of the Partnership Agreement may be amended by the conduct of the parties thereto, notwithstanding any provision to the contrary contained in the relevant agreement.
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| 4.7 |
Section 19(1) of the Act requires a general partner of an exempted limited partnership to act at all times in good faith and, subject to any express provisions of the partnership agreement to the contrary, in the interests of that
partnership and any provision of the Partnership Agreement which purports to waive or reduce this responsibility may not be enforceable.
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| 4.8 |
In the case of an exempted limited partnership formed under the Act the general partner(s) are liable for partnership debts (i.e. debts validly contracted by them on behalf of the partnership) to the extent the partnership assets are
insufficient to meet those debts, and the liability of the limited partners is limited to the extent provided in the Act. The general partner(s) of an exempted limited partnership (or any agent or delegate of the general partner(s))
enter into all agreements and contracts on behalf of the exempted limited partnership under general legal principles of agency as modified by the terms of the partnership agreement, the Act and the Partnership Act (As Revised). Under the
terms of the Act, any right or property of the exempted limited partnership which is conveyed to or vested in or held either:
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| (a) |
on behalf of any one or more of the general partners; or
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| (b) |
in the name of the exempted limited partnership,
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is an asset of the exempted limited partnership held upon trust in accordance with the terms of the Act.
| 4.9 |
A certificate, determination, calculation or designation of any party to the Partnership Agreement as to any matter provided therein might be held by a Cayman Islands court not to be conclusive,
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final and binding if, for example, it could be shown to have an unreasonable or arbitrary basis, or in the event of manifest error.
| 4.10 |
We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non Cayman Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations and any references to them in the
Partnership Agreement.
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We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. In providing our consent, we do not thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.
The opinions in this opinion letter are strictly limited to the matters contained in the opinions section above and do not extend to any other matters. We have not been asked to review and we therefore have not
reviewed any of the ancillary documents relating to the Partnership Agreement and express no opinion or observation upon the terms of any such document.
This opinion letter is addressed to and for the benefit solely of the addressees and may not be relied upon by any other person for any purpose, nor may it be transmitted or disclosed (in whole or part) to any
other person without our prior written consent, except as required by law.
Yours faithfully
/s/ Maples and Calder (Cayman) LLP
Maples and Calder (Cayman) LLP
Schedule
Addressees
The General Partner
The Partnership
KKR Capital Markets LLC