Delaware | | | 88-1203639 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification No.) |
Large accelerated filer | | | ☒ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☐ | | | Smaller reporting company | | | ☐ |
| | | | Emerging growth company | | | ☐ |
Exact Name of Registrant as Specified in its Charter (or Other Organizational Document) | | | State or other Jurisdiction of Incorporation or Organization | | | IRS Employer Identification Number (if none write N/A) | | | Address, Including Zip Code, of Registrant’s Principal Executive Offices | | | Phone Number |
KKR Group Partnership L.P. | | | Cayman Islands | | | 98-0598047 | | | 30 Hudson Yards, New York, New York 10001 | | | 212-750-8300 |
KKR Group Finance Co. IX LLC | | | Delaware | | | 86-2457444 | | | 30 Hudson Yards, New York, New York 10001 | | | 212-750-8300 |
KKR Group Finance Co. XIII LLC | | | Delaware | | | 99-2767676 | | | 30 Hudson Yards, New York, New York 10001 | | | 212-750-8300 |
• | shares of our common stock; |
• | shares of our preferred stock; |
• | debt securities; |
• | depositary shares; |
• | warrants to purchase debt or equity securities; |
• | purchase contracts; and |
• | units. |
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• | 3,500,000,000 are designated as common stock; and |
• | 1,500,000,000 are designated as preferred stock, of which (x) 23,000,000 shares are designated as “6.00% Series C Mandatory Convertible Preferred Stock” (“Series C Mandatory Convertible Preferred Stock”), (y) 1 share is designated as “Series I Preferred Stock” (“Series I Preferred Stock”), and (z) the remaining 1,476,999,999 shares may be designated from time to time in accordance with Article IV of the certificate of incorporation. |
• | any increase in the number of authorized shares of Series I Preferred Stock; |
• | a sale of all or substantially all of our and our subsidiaries’ assets, taken as a whole, in a single transaction or series of related transactions (except (i) for the sole purpose of changing our legal form into another limited liability entity and where the governing instruments of the new entity provide our stockholders with substantially the same rights and obligations and (ii) mortgages, pledges, hypothecations or grants of a security interest in all or substantially all of our and our subsidiaries’ assets (including for the benefit of affiliates of the Series I Preferred Stockholder) and except for any forced sale of any or all of our and our subsidiaries’ assets pursuant to the foreclosure of, or other realization upon, any such encumbrance); |
• | merger, consolidation or other business combination (except for the sole purpose of changing our legal form into another limited liability entity and where the governing instruments of the new entity provide our stockholders with substantially the same rights and obligations); and |
• | any amendment to our certificate of incorporation that would have a material adverse effect on the rights or preferences of our common stock relative to the other classes of our stock. |
• | change the par value of our common stock; or |
• | alter or change the powers, preferences, or special rights of the common stock in a way that would adversely affect the powers, preferences or special rights of our common stock. |
(i) | less than 10% of the then issued and outstanding shares of any class (other than preferred stock) are held by persons other than the Series I Preferred Stockholder and its affiliates; or |
(ii) | we are subjected to registration under the provisions of the U.S. Investment Company Act of 1940, as amended (the “Investment Company Act”), |
(1) | amendments to provisions relating to approvals of the transfer of the Class B units in KKR Group Partnership, Series I Preferred Stockholder approvals for certain actions and the appointment or removal of the Chief Executive Officer or Co-Chief Executive Officers; |
(2) | a change in our name, our registered agent or our registered office; |
(3) | an amendment that our board of directors determines to be necessary or appropriate to address certain changes in U.S. federal, state and local income tax regulations, legislation or interpretation; |
(4) | an amendment that is necessary, in the opinion of our counsel, to prevent us or our indemnitees from having a material risk of being in any manner subjected to the provisions of the Investment Company Act, the U.S. Investment Advisers Act of 1940, as amended, or “plan asset” regulations adopted under the U.S. Employee Retirement Income Security Act of 1974, as amended, whether or not substantially similar to plan asset regulations currently applied or proposed by the U.S. Department of Labor; |
(5) | a change in our fiscal year or taxable year; |
(6) | an amendment that our board of directors has determined to be necessary or appropriate for the creation, authorization or issuance of any class or series of our capital stock or options, rights, warrants or appreciation rights relating to our capital stock; |
(7) | any amendment expressly permitted in our certificate of incorporation to be made by the Series I Preferred Stockholder acting alone; |
(8) | an amendment effected, necessitated or contemplated by an agreement of merger, consolidation or other business combination agreement that has been approved under the terms of our certificate of incorporation; |
(9) | an amendment effected, necessitated or contemplated by an amendment to the limited partnership agreement of KKR Group Partnership (as amended, the “KKR Group Partnership LPA”) that requires unitholders of KKR Group Partnership to provide a statement, certification or other proof of evidence regarding whether such unitholder is subject to U.S. federal income taxation on the income generated by KKR Group Partnership; |
(10) | any amendment that our board of directors has determined is necessary or appropriate to reflect and account for our formation of, or our investment in, any corporation, partnership, joint venture, limited liability company or other entity, as otherwise permitted by our certificate of incorporation; |
(11) | a merger into, or conveyance of all of our assets to, another limited liability entity that is newly formed and has no assets, liabilities or operations at the time of the merger or conveyance other than those it receives by way of the merger or conveyance consummated solely to effect a mere change in our legal form, the governing instruments of which provide the stockholders with substantially the same rights and obligations as provided by our certificate of incorporation; |
(12) | any amendment that our board of directors determines to be necessary or appropriate to cure any ambiguity, omission, mistake, defect or inconsistency; or |
(13) | any other amendments substantially similar to any of the matters described in (1) through (12) above. |
(1) | do not adversely affect the stockholders considered as a whole (or adversely affect any particular class or series of stock as compared to another class or series) in any material respect; |
(2) | are necessary or appropriate to satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal, state, local or non-U.S. agency or judicial authority or contained in any federal, state, local or non-U.S. statute (including the DGCL); |
(3) | are necessary or appropriate to facilitate the trading of our stock or to comply with any rule, regulation, guideline or requirement of any securities exchange on which our stock are or will be listed for trading; |
(4) | are necessary or appropriate for any action taken by us relating to splits or combinations of shares of our capital stock under the provisions of our certificate of incorporation; or |
(5) | are required to effect the intent of or are otherwise contemplated by our certificate of incorporation. |
• | entry into a debt financing arrangement in an amount in excess of 10% of our then existing long-term indebtedness (other than with respect to intercompany debt financing arrangements); |
• | issuances of securities that would (i) represent at least 5% of any class of equity securities or (ii) have designations, preferences, rights priorities or powers that are more favorable than the common stock; |
• | adoption of a shareholder rights plan; |
• | amendment of our certificate of incorporation, certain provisions of our bylaws relating to our board of directors and officers, quorum, adjournment and the conduct of stockholder meetings, and provisions related to stock certificates, registrations of transfers and maintenance of books and records of KKR & Co. Inc. and the KKR Group Partnership LPA; |
• | the appointment or removal of our Chief Executive Officer or a Co-Chief Executive Officer; |
• | merger, sale or other dispositions of all or substantially all of the assets, taken as a whole, of us and our subsidiaries, and the liquidation or dissolution of us or KKR Group Partnership; and |
• | the withdrawal, removal or substitution of any person as the general partner of KKR Group Partnership or the transfer of beneficial ownership of all or any part of a general partner interest in KKR Group Partnership to any person other than a wholly-owned subsidiary. |
• | the title of the series; |
• | the maximum aggregate principal amount, if any, established for debt securities of the series; |
• | the person to whom any interest on a debt security of the series will be payable, if other than the person in whose name that debt security (or one or more predecessor debt securities) is registered at the close of business on the regular record date for such interest; |
• | the date or dates on which the principal of any debt securities of the series will be payable or the method used to determine or extend those dates; |
• | the rate or rates at which any debt securities of the series will bear interest, if any, the date or dates from which any such interest will accrue, the interest payment dates on which any such interest will be payable and the regular record date for any such interest payable on any interest payment date; |
• | the place or places where the principal of and premium, if any, and interest on any debt securities of the series will be payable and the manner in which any payment may be made; |
• | the period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of the series may be redeemed, in whole or in part, at our option and, if other than by a board resolution, the manner in which any election by us to redeem the debt securities will be evidenced; |
• | our obligation or right, if any, to redeem or purchase any debt securities of the series pursuant to any sinking fund or at the option of the holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of the series will be redeemed or purchased, in whole or in part, pursuant to such obligation; |
• | if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any debt securities of the series will be issuable; |
• | if the amount of principal of or premium, if any, or interest on any debt securities of the series may be determined with reference to a financial or economic measure or index or pursuant to a formula, the manner in which such amounts will be determined; |
• | if other than U.S. dollars, the currency, currencies or currency units in which the principal of or premium, if any, or interest on any debt securities of the series will be payable and the manner of determining the equivalent thereof in U.S. dollars for any purpose; |
• | if the principal of or premium, if any, or interest on any debt securities of the series is to be payable, at our election or the election of the holder thereof, in one or more currencies or currency units other than that or those in which such debt securities are stated to be payable, the currency, currencies or currency units in which the principal of or premium, if any, or interest on such debt securities as to which such election is made will be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount will be determined); |
• | if other than the entire principal amount thereof, the portion of the principal amount of any debt securities of the series which will be payable upon declaration of acceleration of the maturity thereof pursuant to the indenture; |
• | if the principal amount payable at the stated maturity of any debt securities of the series will not be determinable as of any one or more dates prior to the stated maturity, the amount which will be deemed to be the principal amount of such debt securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which will be due and payable upon any maturity other than the stated maturity or which will be deemed to be outstanding as of any date prior to the stated maturity (or, in any such case, the manner in which such amount deemed to be the principal amount will be determined); |
• | if other than by a board resolution, the manner in which any election by us to defease any debt securities of the series pursuant to the indenture will be evidenced; whether any debt securities of the series other than debt securities denominated in U.S. dollars and bearing interest at a fixed rate are to be subject to the defeasance provisions of the indenture; or, in the case of debt securities denominated in U.S. dollars and bearing interest at a fixed rate, if applicable, that the debt securities of the series, in whole or any specified part, will not be defeasible pursuant to the indenture; |
• | if applicable, that any debt securities of the series will be issuable in whole or in part in the form of one or more global securities and, in such case, the respective depositaries for such global securities and the form of any legend or legends which will be borne by any such global securities, and any circumstances in which any such global security may be exchanged in whole or in part for debt securities registered, and any transfer of such global security in whole or in part may be registered, in the name or names of persons other than the depositary for such global security or a nominee thereof and any other provisions governing exchanges or transfers of such global security; |
• | any addition to, deletion from or change in the events of default applicable to any debt securities of the series and any change in the right of the trustee or the requisite holders of such debt securities to declare the principal amount thereof due and payable; |
• | any addition to, deletion from or change in the covenants applicable to debt securities of the series; |
• | if the debt securities of the series are to be convertible into or exchangeable for cash and/or any securities or other property of any person (including us), the terms and conditions upon which such debt securities will be so convertible or exchangeable; |
• | whether the debt securities of the series will be guaranteed by any persons and, if so, the identity of such persons, the terms and conditions upon which such debt securities will be guaranteed and, if applicable, the terms and conditions upon which such guarantees may be subordinated to other indebtedness of the respective guarantors; |
• | whether the debt securities of the series will be secured by any collateral and, if so, the terms and conditions upon which such debt securities will be secured and, if applicable, upon which such liens may be subordinated to other liens securing other indebtedness of us or of any guarantor; |
• | whether the debt securities of the series will be subordinated to other indebtedness of the issuer and, if so, the terms and conditions upon which such debt securities will be subordinated; |
• | if a trustee other than the trustee named in the indenture is to act as trustee for the securities of a series, the name and corporate trust office of such trustee; and |
• | any other terms of the debt securities of the series (which terms will not be inconsistent with the provisions of the indenture, except as permitted thereunder). |
• | For fixed rate debt securities, if the maturity date, the redemption date or an interest payment date is not a business day, the issuer will pay principal, premium, if any, the redemption price, if any, and interest on the next succeeding business day, and no interest will accrue from and after the relevant maturity date, redemption date or interest payment date to the date of that payment. Interest on the fixed rate debt securities will be computed on the basis of a 360-day year of twelve 30-day months. |
• | For floating rate debt securities, if any interest payment date for the debt securities of a series bearing interest at a floating rate (other than the maturity date or the redemption date, if any) would otherwise be a day that is not a business day, then the interest payment date will be postponed to the following date which is a business day, unless that business day falls in the next succeeding calendar month, in which case the interest payment date will be the immediately preceding business day; if the maturity date or the redemption date, if any, is not a business day, the issuer will pay principal, premium, if any, the redemption price, if any, and interest on the next succeeding business day, and no interest will accrue from and after the maturity date or the redemption date, if any, to the date of that payment. Interest on the floating rate debt securities will be computed on the basis of the actual number of days elapsed during the relevant interest period and a 360-day year. |
• | limit the amount of indebtedness or lease obligations that may be incurred by the issuer and the guarantors; |
• | limit the ability of the issuer or the guarantor to issue, assume or guarantee debt secured by liens; or |
• | restrict the issuer or the guarantor from paying dividends or making distributions on our capital stock or purchasing or redeeming our capital stock. |
• | the issuer 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 Permitted Jurisdictions (as defined below) and has assumed by supplemental indenture all of our obligations under the indenture; |
• | immediately after giving effect to such transaction, no default or event of default under the indenture has occurred and is continuing; and |
• | the issuer delivers to the trustee an officers’ certificate or an opinion of counsel, each stating that such transaction and any supplemental indenture relating thereto comply with the indenture and that all conditions precedent provided for in the indenture relating to such transaction have been complied with. |
• | a “person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity including government or political subdivision or an agency or instrumentality thereof; |
• | a “Substantially All Merger” means our merger or consolidation 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 our combined assets taken as a whole to any other person; and |
• | a “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 our combined assets taken as a whole to any other person. |
• | “Permitted Jurisdictions” means the laws of the United States of America or any state thereof. |
(1) | default in the payment of any installment of interest on any debt securities of that series, and such default continues for a period of 30 days after the payment becomes due and payable; |
(2) | default in the payment of principal of or premium, if any, on any debt securities of that series when it becomes due and payable, regardless of whether the payment became due and payable at its stated maturity, upon redemption, upon declaration of acceleration or otherwise; |
(3) | default in the deposit of any sinking fund payment, when and as due by the terms of any debt securities of that series; |
(4) | default in the performance, or breach, of any covenant or agreement of ours in the indenture with respect to the debt securities of that series (other than as referred to in clause (1), (2) or (3) above), which continues for a period of 90 days after written notice to us by the trustee or to us and the trustee by the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of that series; |
(5) | the issuer pursuant to or within the meaning of the Bankruptcy Law (as defined below): |
• | commence a voluntary case or proceeding; |
• | consent to the entry of an order for relief against us in an involuntary case or proceeding; |
• | consent to the appointment of a Custodian (as defined below) of us or for all or substantially all of our property; |
• | make a general assignment for the benefit of our creditors; |
• | file a petition in bankruptcy or answer or consent seeking reorganization or relief; |
• | consent to the filing of such petition or the appointment of or taking possession by a Custodian; or |
• | take any comparable action under any foreign laws relating to insolvency; |
(6) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
• | is for relief against us in an involuntary case, or adjudicates us insolvent or bankrupt; |
• | appoints a Custodian of us or for all or substantially all of our property; or |
• | orders the winding-up or liquidation of us (or any similar relief is granted under any foreign laws); and the order or decree remains unstayed and in effect for 90 days; or |
(7) | any other event of default provided with respect to debt securities of that series occurs. |
(1) | an event of default has occurred and is continuing and such holder has given the trustee prior written notice of such continuing event of default, specifying an event of default with respect to the debt securities of that series; |
(2) | the holders of not less than 25% of the aggregate principal amount of the outstanding debt securities of that series have requested the trustee to institute proceedings in respect of such event of default; |
(3) | the trustee has been offered indemnity reasonably satisfactory to it against its costs, expenses and liabilities in complying with such request; |
(4) | the trustee has failed to institute proceedings 60 days after the receipt of such notice, request and offer of indemnity; and |
(5) | no direction inconsistent with such written request has been given for 60 days by the holders of a majority in aggregate principal amount of the outstanding debt securities of that series. |
• | change the stated maturity of the principal of, or installment of interest on, any debt security; |
• | reduce the principal amount of any debt security or reduce the amount of the principal of any debt security which would be due and payable upon a declaration of acceleration of the maturity thereof or reduce the rate of or extend the time of payment of interest on any debt security; |
• | reduce any premium payable on the redemption of any debt security or change the date on which any debt security may or must be redeemed; |
• | change the coin or currency in which the principal of, premium, if any, or interest on any debt security is payable; |
• | impair the right of any holder to institute suit for the enforcement of any payment on or after the stated maturity of any debt security (or, in the case of redemption or repayment, on or after the redemption date or repayment date, as applicable); |
• | reduce the percentage in principal amount of the outstanding debt securities, the consent of whose holders is required in order to take certain actions; |
• | modify any provisions in the indenture regarding (i) the modifications and amendments requiring the consent of the holders of each affected debt security and (ii) the waiver of past defaults by the holders of debt securities and (iii) the waiver of certain covenants by the holders of debt securities, except to increase any percentage vote required or to provide that certain other provisions of the indenture cannot be modified or waived without the consent of the holder of each debt security affected thereby; |
• | make any change that adversely affects the right to convert or exchange any debt security or decreases the conversion or exchange rate or increases the conversion price of any convertible or exchangeable debt security, unless such decrease or increase is permitted by the terms of the debt securities; |
• | subordinate the debt security of any series to any of our other obligation; or |
• | modify any of the above provisions. |
• | to add to our covenants for the benefit of holders of the debt securities of all or any series or to surrender any right or power conferred upon us; |
• | to evidence the succession of another person to, and the assumption by the Successor Person of our covenants, agreements and obligations under, the indenture pursuant to the covenant described under “—Covenants—Consolidation, Merger and Sale of Assets”; |
• | to add any additional events of default for the benefit of holders of the debt securities of all or any series; |
• | to add one or more guarantees for the benefit of holders of the debt securities; |
• | to secure the debt securities; |
• | to add or appoint a successor or separate trustee or other agent; |
• | to provide for the issuance of additional debt securities of any series; |
• | to establish the form or terms of debt securities of any series as permitted by the indenture; |
• | to comply with the rules of any applicable securities depository; |
• | to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
• | to add to, change or eliminate any of the provisions of the indenture in respect of one or more series of debt securities; provided that any such addition, change or elimination (a) shall neither (1) apply to any debt security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (2) modify the rights of the holder of any such debt security with respect to such provision or (b) shall become effective only when there is no debt security described in clause (1) outstanding; |
• | to cure any ambiguity, to correct or supplement any provision of the indenture; |
• | to change any other provision contained in the debt securities of any series or under the indenture; provided that the change does not adversely affect the interests of the holders of debt securities of any series in any material respect; or |
• | to conform any provision of the indenture or the debt securities of any series to the description of such debt securities contained in the Company’s prospectus, prospectus supplement, offering memorandum or similar document with respect to the offering of the debt securities of such series |
(1) | DTC notifies us that it is unwilling or unable or no longer permitted under applicable law to continue as depository for such global security and a successor depository is not appointed within 90 days; |
(2) | an event of default with respect to such global security has occurred and be continuing; |
(3) | the issuer delivers to the trustee an order to such effect; or |
(4) | there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose in the indenture. |
• | the title of the warrants; |
• | the price or prices at which the warrants will be issued; |
• | the designation, amount and terms of the securities for which the warrants are exercisable; |
• | the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each other security; |
• | the aggregate number of warrants; |
• | any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants; |
• | the price or prices at which the securities purchasable upon exercise of the warrants may be purchased; |
• | the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable, if applicable; |
• | if applicable, a discussion of material U.S. federal income tax considerations; |
• | the date on which the right to exercise the warrants will commence, and the date on which the right will expire; |
• | the maximum or minimum number of warrants that may be exercised at any time; |
• | information with respect to book-entry procedures, if any; and |
• | any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
• | through underwriters or dealers; |
• | directly to a limited number of purchasers or to a single purchaser; |
• | in “at the market offerings,” within the meaning of Rule 415(a)(4) under the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise; |
• | through agents; or |
• | through a combination of any of these methods of sale. |
• | the method of distribution of the securities offered thereby; |
• | the names of any underwriters or agents; |
• | the proceeds we will receive from the sale, if any; |
• | any discounts and other items constituting underwriters’ or agents’ compensation; |
• | any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers; and |
• | any securities exchanges on which the applicable securities may be listed. |
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2023; |
• | our Current Reports on Form 8-K filed with the SEC on January 2, 2024 (Item 2.01 only) and April 10, 2024 (Items 1.01, 1.02 and 2.03 only) and Current Report on Form 8-K/A filed with the SEC on March 8, 2024; and |
• | the description of our capital stock, contained in Exhibit 4.1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, including any amendments or reports filed for the purpose of updating such description. |
ITEM 14. | OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
| | Amount to be paid | |
SEC Registration Fee | | | $ * |
Legal Fees and Expenses | | | ** |
Accounting Fees and Expenses | | | ** |
Printing Fees | | | ** |
Rating Agency Fees | | | ** |
Miscellaneous | | | ** |
Total | | | $* |
* | The registrant is registering an indeterminate amount of securities under this registration statement and in accordance with Rules 456(b) and 457(r) under the Securities Act, the registrant is deferring payment of the registration fee. |
** | The applicable prospectus supplement will set forth the estimated aggregate amount of expenses payable in respect of any offering of securities. |
ITEM 15. | INDEMNIFICATION OF DIRECTORS AND OFFICERS. |
• | any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders; |
• | any act or omission not in good faith or which involved intentional misconduct or a knowing violation of law by a director or officer; |
• | any unlawful payment of dividends or unlawful stock repurchase or redemption; |
• | any transaction from which the director or officer derived an improper personal benefit; or |
• | in the case of an officer, any action by or in the right of the corporation (including any derivative claim) against the officer. |
ITEM 16. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. |
Exhibit Number | | | Description |
1.1* | | | Form of Underwriting Agreement for the securities registered hereby. |
| | Amended and Restated Certificate of Incorporation of KKR & Co. Inc. (incorporated by reference to Exhibit 3.1 to the KKR & Co. Inc. Current Report on Form 8-K12B filed on May 31, 2022). | |
| | Amended and Restated Bylaws of KKR & Co. Inc. (incorporated by reference to Exhibit 3.2 to the KKR & Co. Inc. Current Report on Form 8-K12B filed on May 31, 2022). | |
4.3* | | | Form of Preferred Stock Certificate. |
4.4* | | | Form of Certificate of Designation of Preferred Stock. |
| | Form of Indenture between KKR & Co. Inc., as issuer, and the trustee (incorporated by reference to Exhibit 4.9 to the KKR & Co. Inc. Form S-3 filed on November 9, 2018). | |
| | Form of Subsidiary Issuer Indenture, among KKR & Co. Inc., as guarantor, KKR Group Partnership L.P. and KKR Group Finance Co. XIII LLC, as a subsidiary issuer or guarantor and the trustee (incorporated by reference to Exhibit 4.10 to the KKR & Co. Inc. Form S-3 filed on March 23, 2021). | |
| | Indenture dated as of March 31, 2021, among KKR Group Finance Co. IX LLC, KKR & Co. Inc., KKR Group Partnership L.P. and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 to the KKR & Co. Inc. Current Report on Form 8-K filed on March 31, 2021). | |
4.8* | | | Form of Debt Securities. |
4.9* | | | Form of Depositary Share Agreement. |
4.10* | | | Form of Depositary Certificate. |
4.11* | | | Form of Warrant Agreement. |
4.12* | | | Form of Warrant Certificate. |
4.13* | | | Form of Purchase Contract Agreement. |
4.14* | | | Form of Purchase Certificate. |
4.15* | | | Form of Unit Agreement. |
4.16* | | | Form of Unit Certificate. |
| | Opinion of Simpson Thacher & Bartlett LLP. | |
| | Opinion of Maples and Calder (Cayman) LLP. | |
| | Consent of Deloitte & Touche LLP. | |
| | Consent of Simpson Thacher & Bartlett LLP (included as part of Exhibit 5.1). | |
| | Consent of Maples and Calder (Cayman) LLP (included as part of Exhibit 5.2). | |
| | Power of Attorney (included on signature page). | |
| | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A., as trustee for the form of Indenture of Exhibit 4.5. | |
| | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A., as trustee for the form of Indenture of Exhibit 4.6. | |
| | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A., as trustee for the Indenture of Exhibit 4.7. | |
25.4** | | | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of a trustee to be named later for the form of Indenture of Exhibit 4.5. |
25.5** | | | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of a trustee to be named later for the form of Indenture of Exhibit 4.6. |
| | Filing Fee Table. |
* | To be filed as an exhibit to a Current Report on Form 8-K or other document to be incorporated by reference herein or to a post-effective amendment hereto, if applicable. |
** | To be filed as a 305B2 filing later if a trustee is to be named later. |
ITEM 17. | UNDERTAKINGS |
(a) | The undersigned registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act. |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; and |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
| | KKR & Co. Inc. | ||||
| | | | |||
| | By: | | | /s/ Robert H. Lewin | |
| | | | Name: Robert H. Lewin | ||
| | | | Title: Chief Financial Officer |
Signature | | | Title | | | Date |
| | | | |||
/s/ Henry R. Kravis | | | Co-Executive Chairman, Director | | | May 8, 2024 |
Henry R. Kravis | | |||||
| | | | |||
/s/ George R. Roberts | | | Co-Executive Chairman, Director | | | May 8, 2024 |
George R. Roberts | | |||||
| | | | |||
/s/ Joseph Y. Bae | | | Director, Co-Chief Executive Officer (principal executive officer) | | | May 8, 2024 |
Joseph Y. Bae | | |||||
| | | | |||
/s/ Scott C. Nuttall | | | Director, Co-Chief Executive Officer (principal executive officer) | | | May 8, 2024 |
Scott C. Nuttall | | |||||
| | | | |||
/s/ Adriane M. Brown | | | Director | | | May 8, 2024 |
Adriane M. Brown | | |||||
| | | | |||
/s/ Matthew R. Cohler | | | Director | | | May 8, 2024 |
Matthew R. Cohler | | |||||
| | | | |||
/s/ Mary N. Dillon | | | Director | | | May 8, 2024 |
Mary N. Dillon | |
Signature | | | Title | | | Date |
/s/ Arturo Gutiérrez Hernández | | | Director | | | May 8, 2024 |
Arturo Gutiérrez Hernández | | |||||
| | | | |||
/s/ Xavier B. Niel | | | Director | | | May 8, 2024 |
Xavier B. Niel | | |||||
| | | | |||
/s/ Kimberly A. Ross | | | Director | | | May 8, 2024 |
Kimberly A. Ross | | |||||
| | | | |||
/s/ Patricia F. Russo | | | Director | | | May 8, 2024 |
Patricia F. Russo | | |||||
| | | | |||
/s/ Robert W. Scully | | | Director | | | May 8, 2024 |
Robert W. Scully | | |||||
| | | | |||
/s/ Evan T. Spiegel | | | Director | | | May 8, 2024 |
Evan T. Spiegel | | |||||
| | | | |||
/s/ Robert H. Lewin | | | Chief Financial Officer (principal financial and accounting officer) | | | May 8, 2024 |
Robert H. Lewin | |
| | 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 |
Signature | | | Title | | | Date |
| | | | |||
/s/ Joseph Y. Bae | | | Co-Chief Executive Officer, Director (principal executive officer) | | | May 8, 2024 |
Joseph Y. Bae | | |||||
| | | | |||
/s/ Scott C. Nuttall | | | Co-Chief Executive Officer, Director (principal executive officer) | | | May 8, 2024 |
Scott C. Nuttall | | |||||
| | | | |||
/s/ Robert H. Lewin | | | Chief Financial Officer, Director (principal financial and accounting officer) | | | May 8, 2024 |
Robert H. Lewin | | |||||
| | | | |||
/s/ Ryan D. Stork | | | Director | | | May 8, 2024 |
Ryan D. Stork | | |||||
| | | | |||
/s/ Kathryn K. Sudol | | | Director | | | May 8, 2024 |
Kathryn K. Sudol | |
| | KKR Group Finance Co. IX LLC | ||||
| | | | |||
| | By: | | | /s/ Robert H. Lewin | |
| | | | Name: Robert H. Lewin | ||
| | | | Title: Chief Financial Officer |
Signature | | | Title | | | Date |
| | | | |||
/s/ Joseph Y. Bae | | | Co-Chief Executive Officer (principal executive officer) | | | May 8, 2024 |
Joseph Y. Bae | | |||||
| | | | |||
/s/ Scott C. Nuttall | | | Co-Chief Executive Officer (principal executive officer) | | | May 8, 2024 |
Scott C. Nuttall | | |||||
| | | | |||
/s/ Robert H. Lewin | | | Chief Financial Officer and Sole Manager (principal financial and accounting officer) | | | May 8, 2024 |
Robert H. Lewin | |
| | KKR Group Finance Co. XIII LLC | ||||
| | | | |||
| | By: | | | /s/ Robert H. Lewin | |
| | | | Name: Robert H. Lewin | ||
| | | | Title: Chief Financial Officer |
Signature | | | Title | | | Date |
| | | | |||
/s/ Joseph Y. Bae | | | Co-Chief Executive Officer (principal executive officer) | | | May 8, 2024 |
Joseph Y. Bae | | |||||
| | | | |||
/s/ Scott C. Nuttall | | | Co-Chief Executive Officer (principal executive officer) | | | May 8, 2024 |
Scott C. Nuttall | | |||||
| | | | |||
/s/ Robert H. Lewin | | | Chief Financial Officer and Sole Manager (principal financial and accounting officer) | | | May 8, 2024 |
Robert H. Lewin | |
Simpson Thacher & Bartlett llp
|
425 lexington avenue
new york, ny 10017-3954
|
telephone: +1-212-455-2000
facsimile: +1-212-455-2502
|
Very truly yours,
|
|
/s/ Simpson Thacher & Bartlett LLP
SIMPSON THACHER & BARTLETT LLP
|
Subsidiary
|
State of Incorporation or
Formation
|
|
KKR Group Finance Co. IX LLC
|
Delaware
|
|
KKR Group Finance Co. XIII LLC
|
Delaware
|
Subsidiary
|
State or Country of Incorporation or
Formation
|
|
KKR Group Partnership L.P.
|
Cayman Islands
|
KKR Group Partnership L.P.
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
|
|
1 |
Documents Reviewed
|
1.1 |
The certificate of registration dated 14 August 2019 of the General Partner as a foreign company under Part IX of the Companies Act (As Revised) (the "Companies Act").
|
1.2 |
The certificate of registration of the Partnership dated 23 July 2008 and the certificate of change of change of name of the Partnership dated 2 January 2020 as an exempted limited partnership under section 9 of the Exempted Limited
Partnership Act (As Revised) (the "Law").
|
1.3 |
The statement signed on behalf of KKR Fund Holdings GP Limited pursuant to section 9(1) of the Law relating to the Partnership and the statements filed under section 10 of the Law.
|
1.4 |
The third amended and restated limited partnership agreement of the Partnership dated 1 January 2020 between, among others, the General Partner and each of the limited partners named therein, as amended by the amendment no.1 to the third
amended and restated limited partnership agreement of the Partnership dated 14 August 2020, as further amended by the amendment no.2 to the third amended and restated limited partnership agreement of the Partnership dated 29 December 2023
(the "Partnership Agreement").
|
1.5 |
A certificate of good standing in relation to the General Partner issued by the Registrar of Companies dated 3 May 2024.
|
1.6 |
A certificate of good standing in relation to the Partnership issued by the Registrar of Exempted Limited Partnerships dated 3 May 2024 (together with the certificate of good standing in relation to the General Partner, referred to as the
"Certificates of Good Standing").
|
1.7 |
A certificate of the General Partner, a copy of which is attached to this opinion letter (the "General Partner's Certificate").
|
1.8 |
The Registration Statement.
|
2 |
Assumptions
|
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).
|
2.2 |
The Partnership Agreement and each Guarantee have been or, as the case may be, or will be authorised and duly executed and unconditionally delivered by or on behalf of all relevant parties in accordance with all relevant laws.
|
2.3 |
The Partnership Agreement has not been amended, varied, waived or supplemented.
|
2.4 |
The choice of Cayman Islands law as the governing law of the Partnership Agreement has been made in good faith.
|
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.
|
2.6 |
All signatures, initials and seals are genuine.
|
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.
|
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.
|
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).
|
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.
|
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.
|
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).
|
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.
|
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).
|
3 |
Opinions
|
3.1 |
The General Partner has been duly registered as a foreign company under Part IX of the Companies Act and is in good standing with the Registrar of Companies under the laws of the Cayman Islands.
|
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.
|
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.
|
4 |
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:
|
(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;
|
(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;
|
(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;
|
(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;
|
(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;
|
(f) |
arrangements that constitute penalties will not be enforceable;
|
(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;
|
(h) |
provisions imposing confidentiality obligations may be overridden by compulsion of applicable law or the requirements of legal and/or regulatory process;
|
(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;
|
(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);
|
(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
|
(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.
|
4.2 |
Applicable court fees will be payable in respect of the enforcement of the Partnership Agreement.
|
4.3 |
Cayman Islands stamp duty may be payable if the original Partnership Agreement are brought to or executed in the Cayman Islands.
|
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.
|
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.
|
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.
|
4.7 |
Section 19(1) of the Law 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.
|
4.8 |
In the case of an exempted limited partnership formed under the Law 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 Law. 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 Law and the Partnership Act (As Revised). Under the terms of
the Law, any right or property of the exempted limited partnership which is conveyed to or vested in or held either:
|
(a) |
on behalf of any one or more of the general partners; or
|
(b) |
in the name of the exempted limited partnership,
|
4.9 |
A certificate, determination, calculation or designation of any party to a Partnership Agreement as to any matter provided therein might be held by a Cayman Islands court not to be conclusive 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.
|
1 |
The Partnership Agreement remains in full force and effect and has not been terminated or amended in any way, and to the best of my knowledge and belief, no breaches of the Partnership Agreement have occurred. No event has occurred to
effect the termination or dissolution or de-registration of the Partnership.
|
2 |
The General Partner is validly formed, existing and in good standing under the laws of the State of Delaware and is a general partner of the Partnership.
|
3 |
The General Partner has not entered into any mortgages, charges, liens or security interests over the property or accounts of the Partnership.
|
4 |
No event has occurred to effect the termination or dissolution or de-registration of the General Partner.
|
5 |
The General Partner has properly and validly authorised the execution of the Partnership Agreement and any required resolutions and authorisations were duly adopted, are in full force and effect at the date of this certificate and have not
been amended, varied or revoked in any respect.
|
6 |
The partnership records of the Partnership required to be maintained at its registered office in the Cayman Islands are complete and accurate in all material respects and all minutes and resolutions filed thereon represent a complete and
accurate record in all material respects of all meetings of the partners duly convened in accordance with the Partnership Agreement and all resolutions passed by written consent as the case may be.
|
7 |
The shareholders or members of the General Partner and the partners of the Partnership have not restricted the power of the General Partner or the Partnership in any manner relevant to the Partnership Agreement.
|
8 |
Prior to, at the time of, and immediately following the execution of the Partnership Agreement and each Guarantee, the General Partner or the Partnership (as applicable) (a) was, or will be, able to pay (i) its debts as they fell, or fall,
due; and (ii) Partnership debts as they fell, or fall, due out of partnership assets, and (b) the General Partner entered into or will enter into the Partnership Agreement for proper value and not with an intention to defraud or wilfully
defeat an obligation owed to any creditor or with a view to giving a creditor a preference.
|
9 |
To the best of my knowledge and belief, having made due inquiry, neither the General Partner nor the Partnership are subject to legal, arbitral, administrative or other proceedings in any jurisdiction and no such proceedings have been
threatened against the Partnership or the General Partner. No steps have been taken to commence the winding up, dissolution or de-registration of the General Partner nor have the directors, the members, the partners or the shareholders taken
any steps to have the General Partner struck off or placed in liquidation. Further, no steps have been taken to wind up, dissolve or de-register the Partnership or to appoint restructuring officers or interim restructuring officers, and no
receiver has been appointed in relation to any of the General Partner's or the Partnership's property or assets.
|
10 |
Neither the General Partner nor the Partnership is a central bank, monetary authority or other sovereign entity of any state and neither is a subsidiary, direct or indirect, of any sovereign entity or state.
|
11 |
To the best of my knowledge and belief, the execution and delivery of the Partnership Agreement does not breach or conflict with any other agreement to which the General Partner or the Partnership has entered into prior to or on the date
of this certificate and the execution of each Guarantee falls within the permitted purposes of the Partnership Agreement and the General Partner has obtained all necessary consents on behalf of the Partnership.
|
12 |
The General Partner considers the transactions contemplated by the each Guarantee to be of commercial benefit to the General Partner and the Partnership and has acted (i) in good faith; (ii) in the best interests of the General Partner;
(iii) subject to any express provisions of the Partnership Agreement to the contrary, in the interests of the Partnership; and (iv) for a proper purpose of the General Partner and the Partnership, in relation to the transactions which are
the subject of the Opinion.
|
13 |
Each of KKR Group Holdings L.P., KKR Holdings II L.P., KKR Holdings III L.P., and KKR Intermediate Partnership L.P. is a limited partner of the Partnership. Each limited partner has been duly admitted to the Partnership as a limited
partner within the meaning of the Law.
|
Signed:
|
Robert H Lewin |
|
|
|
|
|
Name: |
Robert H. Lewin
|
Title: |
Authorised signatory of KKR Group Holdings Corp. |
(Jurisdiction of incorporation if not a U.S. national bank) |
95-3571558
(I.R.S. employer identification no.) |
333 South Hope Street
Suite 2525 Los Angeles, California
(Address of principal executive offices)
|
90071 (Zip code) |
Delaware
(State or other jurisdiction of
incorporation or organization)
|
88-1203639
(I.R.S. employer identification no.) |
30 Hudson Yards
New York, New York
(Address of principal executive offices)
|
10001 (Zip code) |
1.
|
General information. Furnish the following information as to the trustee:
|
|
(a) |
Name and address of each examining or supervising authority to which it is subject.
|
Name
|
Address
|
Comptroller of the Currency
United States Department of the Treasury
|
Washington, DC 20219
|
Federal Reserve Bank
|
San Francisco, CA 94105
|
Federal Deposit Insurance Corporation
|
Washington, DC 20429
|
(b) |
Whether it is authorized to exercise corporate trust powers.
|
2. |
Affiliations with Obligor.
|
16. |
List of Exhibits.
|
1. |
A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with
Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).
|
2. |
A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No.
333-121948). |
3. |
A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No.
333-152875). |
4. |
A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762).
|
6. |
The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
|
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
|
||
|
By:
|
Ann Dolezal |
|
|
|
Name: Ann M. Dolezal
Title: Vice President |
Dollar amounts
in thousands
|
|
ASSETS |
|
|
|
|
|
Cash and balances due from
|
|
depository institutions:
|
|
Noninterest-bearing balances and currency and coin
|
2,559 |
Interest-bearing balances
|
331,039 |
Securities:
|
|
Held-to-maturity securities
|
0 |
Available-for-sale debt securities
|
524 |
Equity securities with readily determinable fair values not held for trading
|
0 |
Federal funds sold and securities
|
|
purchased under agreements to resell:
|
|
Federal funds sold in domestic offices
|
0 |
Securities purchased under agreements to resell
|
0 |
Loans and lease financing receivables:
|
|
Loans and leases held for sale
|
0 |
Loans and leases, held for investment
|
0 |
LESS: Allowance for loan and lease losses
|
0 |
Loans and leases held for investment, net of allowance
|
0 |
Trading assets
|
0 |
Premises and fixed assets (including capitalized leases)
|
13,138 |
Other real estate owned
|
0 |
Investments in unconsolidated subsidiaries and associated companies
|
0 |
Direct and indirect investments in real estate ventures
|
0 |
Intangible assets
|
856,313 |
Other assets
|
114,683 |
Total assets
|
$1,318,256 |
LIABILITIES
|
|
|
|
Deposits:
|
|
In domestic offices
|
1,264 |
Noninterest-bearing
|
1,264 |
Interest-bearing
|
0 |
Federal funds purchased and securities
|
|
sold under agreements to repurchase:
|
|
Federal funds purchased in domestic offices
|
0 |
Securities sold under agreements to repurchase
|
0 |
Trading liabilities
|
0 |
Other borrowed money:
|
|
(includes mortgage indebtedness and obligations under capitalized leases)
|
0 |
Not applicable
|
|
Not applicable
|
|
Subordinated notes and debentures
|
0 |
Other liabilities
|
263,286 |
Total liabilities
|
264,550 |
Not applicable
|
|
EQUITY CAPITAL
|
|
Perpetual preferred stock and related surplus
|
0 |
Common stock
|
1,000 |
Surplus (exclude all surplus related to preferred stock)
|
106,539 |
Not available
|
|
Retained earnings
|
946,167 |
Accumulated other comprehensive income
|
0 |
Other equity capital components
|
0 |
Not available
|
|
Total bank equity capital
|
1,053,706 |
Noncontrolling (minority) interests in consolidated subsidiaries
|
0 |
Total equity capital
|
1,053,706 |
Total liabilities and equity capital
|
1,318,256 |
(Jurisdiction of incorporation
if not a U.S. national bank)
|
95-3571558
(I.R.S. employer
identification no.)
|
333 South Hope Street
Suite 2525
Los Angeles, California
(Address of principal executive offices)
|
90071
(Zip code)
|
Delaware
(State or other jurisdiction of
incorporation or organization)
|
99-2767676
(I.R.S. employer
identification no.)
|
30 Hudson Yards
New York, New York
(Address of principal executive offices)
|
10001
(Zip code)
|
Delaware
(State or other jurisdiction of
incorporation or organization)
|
88-1203639
(I.R.S. employer
identification no.)
|
30 Hudson Yards
New York, New York
(Address of principal executive offices)
|
10001
(Zip code)
|
Cayman Islands
(State or other jurisdiction of
incorporation or organization)
|
98-0598047
(I.R.S. employer
identification no.)
|
30 Hudson Yards
New York, New York
(Address of principal executive offices)
|
10001
(Zip code)
|
(a) |
Name and address of each examining or supervising authority to which it is subject.
|
Name
|
Address
|
Comptroller of the Currency
United States Department of the Treasury
|
Washington, DC 20219
|
Federal Reserve Bank
|
San Francisco, CA 94105
|
Federal Deposit Insurance Corporation
|
Washington, DC 20429
|
(b) |
Whether it is authorized to exercise corporate trust powers.
|
2. |
Affiliations with Obligor.
|
16. |
List of Exhibits.
|
1. |
A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to
Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).
|
2. |
A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).
|
3. |
A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).
|
4. |
A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762).
|
6. |
The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
|
||
By: | /s/ Ann Dolezal | |
Name: Ann M. Dolezal | ||
Title: Vice President |
Dollar amounts
in thousands
|
|
ASSETS |
|
|
|
|
|
Cash and balances due from
|
|
depository institutions:
|
|
Noninterest-bearing balances and currency and coin
|
2,559 |
Interest-bearing balances
|
331,039 |
Securities:
|
|
Held-to-maturity securities
|
0 |
Available-for-sale debt securities
|
524 |
Equity securities with readily determinable fair values not held for trading
|
0 |
Federal funds sold and securities
|
|
purchased under agreements to resell:
|
|
Federal funds sold in domestic offices
|
0 |
Securities purchased under agreements to resell
|
0 |
Loans and lease financing receivables:
|
|
Loans and leases held for sale
|
0 |
Loans and leases, held for investment
|
0 |
LESS: Allowance for loan and lease losses
|
0 |
Loans and leases held for investment, net of allowance
|
0 |
Trading assets
|
0 |
Premises and fixed assets (including capitalized leases)
|
13,138 |
Other real estate owned
|
0 |
Investments in unconsolidated subsidiaries and associated companies
|
0 |
Direct and indirect investments in real estate ventures
|
0 |
Intangible assets
|
856,313 |
Other assets
|
114,683 |
Total assets
|
$1,318,256 |
LIABILITIES
|
|
|
|
Deposits:
|
|
In domestic offices
|
1,264 |
Noninterest-bearing
|
1,264 |
Interest-bearing
|
0 |
Federal funds purchased and securities
|
|
sold under agreements to repurchase:
|
|
Federal funds purchased in domestic offices
|
0 |
Securities sold under agreements to repurchase
|
0 |
Trading liabilities
|
0 |
Other borrowed money:
|
|
(includes mortgage indebtedness and obligations under capitalized leases)
|
0 |
Not applicable
|
|
Not applicable
|
|
Subordinated notes and debentures
|
0 |
Other liabilities
|
263,286 |
Total liabilities
|
264,550 |
Not applicable
|
|
EQUITY CAPITAL
|
|
Perpetual preferred stock and related surplus
|
0 |
Common stock
|
1,000 |
Surplus (exclude all surplus related to preferred stock)
|
106,539 |
Not available
|
|
Retained earnings
|
946,167 |
Accumulated other comprehensive income
|
0 |
Other equity capital components
|
0 |
Not available
|
|
Total bank equity capital
|
1,053,706 |
Noncontrolling (minority) interests in consolidated subsidiaries
|
0 |
Total equity capital
|
1,053,706 |
Total liabilities and equity capital
|
1,318,256 |
(Jurisdiction of incorporation if not a U.S. national bank) |
95-3571558
(I.R.S. employer identification no.) |
333 South Hope Street
Suite 2525 Los Angeles, California
(Address of principal executive offices)
|
90071 (Zip code) |
Delaware
(State or other jurisdiction of incorporation or organization) |
86-2457444
(I.R.S. employer identification no.) |
30 Hudson Yards
New York, New York (Address of principal executive offices) |
10001 (Zip code) |
Delaware
(State or other jurisdiction of
incorporation or organization)
|
88-1203639
(I.R.S. employer identification no.) |
30 Hudson Yards
New York, New York
(Address of principal executive offices)
|
10001 (Zip code) |
Cayman Islands
(State or other jurisdiction of incorporation or organization)
|
98-0598047
(I.R.S. employer identification no.)
|
30 Hudson Yards
New York, New York
(Address of principal executive offices)
|
10001 (Zip code) |
1.
|
General information. Furnish the following information as to the trustee: |
|
(a)
|
Name and address of each examining or supervising authority to which it is subject.
|
Name
|
Address
|
Comptroller of the Currency
United States Department of the Treasury
|
Washington, DC 20219
|
Federal Reserve Bank
|
San Francisco, CA 94105
|
Federal Deposit Insurance Corporation
|
Washington, DC 20429
|
(b) |
Whether it is authorized to exercise corporate trust powers.
|
2. |
Affiliations with Obligor.
|
16. |
List of Exhibits.
|
1. |
A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed
with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).
|
2. |
A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No.
333-121948). |
3. |
A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No.
333-152875). |
4. |
A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No.
333-229762).
|
6. |
The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
|
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
|
||
|
By: |
/s/ Ann Dolezal |
|
|
|
Name: |
Ann M. Dolezal |
Title: |
Vice President |
Dollar amounts
in thousands
|
|
ASSETS |
|
|
|
|
|
Cash and balances due from
|
|
depository institutions:
|
|
Noninterest-bearing balances and currency and coin
|
2,559 |
Interest-bearing balances
|
331,039 |
Securities:
|
|
Held-to-maturity securities
|
0 |
Available-for-sale debt securities
|
524 |
Equity securities with readily determinable fair values not held for trading
|
0 |
Federal funds sold and securities
|
|
purchased under agreements to resell:
|
|
Federal funds sold in domestic offices
|
0 |
Securities purchased under agreements to resell
|
0 |
Loans and lease financing receivables:
|
|
Loans and leases held for sale
|
0 |
Loans and leases, held for investment
|
0 |
LESS: Allowance for loan and lease losses
|
0 |
Loans and leases held for investment, net of allowance
|
0 |
Trading assets
|
0 |
Premises and fixed assets (including capitalized leases)
|
13,138 |
Other real estate owned
|
0 |
Investments in unconsolidated subsidiaries and associated companies
|
0 |
Direct and indirect investments in real estate ventures
|
0 |
Intangible assets
|
856,313 |
Other assets
|
114,683 |
Total assets
|
$1,318,256 |
LIABILITIES
|
|
|
|
Deposits:
|
|
In domestic offices
|
1,264 |
Noninterest-bearing
|
1,264 |
Interest-bearing
|
0 |
Federal funds purchased and securities
|
|
sold under agreements to repurchase:
|
|
Federal funds purchased in domestic offices
|
0 |
Securities sold under agreements to repurchase
|
0 |
Trading liabilities
|
0 |
Other borrowed money:
|
|
(includes mortgage indebtedness and obligations under capitalized leases)
|
0 |
Not applicable
|
|
Not applicable
|
|
Subordinated notes and debentures
|
0 |
Other liabilities
|
263,286 |
Total liabilities
|
264,550 |
Not applicable
|
|
EQUITY CAPITAL
|
|
Perpetual preferred stock and related surplus
|
0 |
Common stock
|
1,000 |
Surplus (exclude all surplus related to preferred stock)
|
106,539 |
Not available
|
|
Retained earnings
|
946,167 |
Accumulated other comprehensive income
|
0 |
Other equity capital components
|
0 |
Not available
|
|
Total bank equity capital
|
1,053,706 |
Noncontrolling (minority) interests in consolidated subsidiaries
|
0 |
Total equity capital
|
1,053,706 |
Total liabilities and equity capital
|
1,318,256 |
Security
Type
|
Security
Class
Title
|
Fee
Calculation
or Carry
Forward
Rule
|
Amount
Registered(1)
|
Proposed
Maximum
Offering
Price Per
Unit(2)
|
Maximum
Aggregate
Offering
Price(2)
|
Fee
Rate
|
Amount of
Registration
Fee(2)
|
Carry
Forward
Form
Type
|
Carry
Forward
File
Number
|
Carry
Forward
Initial
effective
date
|
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward
|
|
Newly Registered Securities
|
||||||||||||
Fees to Be
Paid
|
Equity
|
Common stock(3)(4)
|
Rule 457(r)
|
—
|
—
|
—
|
—
|
—
|
||||
Equity
|
Preferred stock(3)
|
Rule 457(r)
|
—
|
—
|
—
|
—
|
—
|
|||||
Debt
|
Debt Securities(3)(5)
|
Rule 457(r)
|
—
|
—
|
—
|
—
|
—
|
|||||
Debt
|
Guarantees of Debt Securities(5)(6)
|
Other
|
—
|
—
|
—
|
—
|
—
|
|||||
Equity
|
Depositary Shares(3)
|
Rule 457(r)
|
—
|
—
|
—
|
—
|
—
|
|||||
Other
|
Warrants(3)
|
Rule 457(r)
|
—
|
—
|
—
|
—
|
—
|
|||||
Other
|
Purchase Contracts(3)
|
Rule 457(r)
|
—
|
—
|
—
|
—
|
—
|
|||||
Other
|
Units(3)
|
Rule 457(r)
|
—
|
—
|
—
|
—
|
—
|
|||||
Fees
Previously
Paid
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
|||||
Carry Forward Securities
|
||||||||||||
Carry
Forward
Securities
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
|||
Total Offering Amounts
|
N/A
|
N/A
|
||||||||||
Total Fees Previously Paid
|
N/A
|
|||||||||||
Total Fee Offsets
|
N/A
|
|||||||||||
Net Fee Due
|
N/A
|
*
|
Additional Registrant
|
(1)
|
Not specified pursuant to General Instruction II.E of Form S-3. There is being registered hereby such indeterminate number or amount, as the case may
be, of the identified securities as may from time to time be issued at indeterminate prices. The securities registered hereby may be offered for U.S. dollars or the equivalent thereof in foreign currencies.
|
(2)
|
In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee.
Registration fees will be paid subsequently on a “pay as you go” basis in one or more offerings to be made hereunder.
|
(3)
|
Separate consideration may or may not be received for securities that are issuable upon exercise, conversion or exchange of other securities.
|
(4)
|
An indeterminate number of shares of common stock may be issued from time to time upon exercise, conversion or exchange of other securities.
|
(5)
|
Debt securities may be issued by us and/or any of the registrants named under “Table of Additional Registrants” in the Registration Statement on Form
S-3ASR to which this exhibit relates and may be issued without guarantees or may be guaranteed by us or one or more of the registrants under “Table of Additional Registrants.”
|
(6)
|
No separate consideration will be received for the guarantees. Pursuant to Rule 457(n) under the Securities Act, no registration fee is required with
respect to the guarantees.
|
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