Agenda Item No. FRESNO COUNTY EMPLOYEES RETIREMENT ASSOCIATION BOARD OF RETIREMENT Eulallo Gomez, Chair John P. Souza, Vice Chair Laura P. Basua Michael Cardenas Nick Cornacchia Franz Criego Vicki Crow Steven J. Jolly Phil Larson Regina Wheeler, Alternate DATE: March 7, 2012 TO: FROM: Trustees, Board of Retirement Becky Van Wyk, Assistant Retirement Administrator Oki Lr-~ SUBJECT: - Most Favored Nation Side Letter Agreement Provision Election Attached you will find side letter agreements between KKR Mezzanine Partners and other Limited Partners of the Fund. KKR Mezzanine Partners has deemed these side letters and their provisions subject to FCERA through the most favored nations" provision. Investment Counsel, Matthew Maynard of Foster Pepper, has reviewed the attached side letters and recommends that FCERA elect the following provision stated in Paragraph #5 from Side Letter #6: 5. The General Partner confirms that it does not intend to have the Partnership engage in any transaction that, as of the date the Partnership enters into a binding contract to engage in such transactions, is a "listed transaction" or a "prohibited reportable transaction" (each as defined in Section 4965(e) of the Code). If the General Partner reasonably determines that the Partnership has engaged in a transaction that is a listed transaction or a prohibited reportable transaction, the General Partner will promptly notify the Investor of such determination. With your approval, I will notify KKR Mezzanine Partners of your election to adopt the provision in Paragraph #5 from Side Letter #6. Please contact me if you have any questions. Thank you. 1111 H Street, Fresno, CA 93721, Tel 559.457.0681 Fax 559.457.0318
Side Letter 1 March 10, 2011 Ladies and Gentlemen: Reference is made to the Amended and Restated Limited Partnership Agreement of KKR Mezzanine Partners I L.P. (the "Partnership"), dated as of March 31, 2010, as amended (the "Partnership Agreement"), among KKR Associates Mezzanine I LP., as general partner of the Partnership (the "General Partner"), and the limited partners thereof (the "Limited Partners"). (the "Investor") was admitted as a Limited Partner on March 31, 2010 (the "Admission Date"). Capitalized terms used herein without definition have the same meanings as in the Partnership Agreement. This letter agreement amends and restates in its entirety the letter agreement dated as of the Admission Date between the Partnership and the Investor. In consideration of the Capital Commitment made by the Investor, and for so long as the Investor (i) maintains the Capital Commitment and (ii) is not a Defaulting Limited Partner under the Partnership Agreement, the Investor and the Partnership agree as follows; 1. Except as set forth in the last sentence of Section 10.17 of the Partnership Agreement, none of the Partnership, any Parallel Fund, the General Partner nor any general partner (or, in the case of a Parallel Fund that is not a limited partnership, any entity serving in a similar capacity) of any Parallel Fund has entered into or shall enter into any side letter or similar agreement (including any Parallel Fund governing documents) with any existing or future investor in the Partnership or any Parallel Fund in connection with the investment of such investor in the Partnership or any Parallel Fund (a "Side Letter") that has the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect than the rights and benefits established in favor of the Investor by the Partnership Agreement or pursuant to this letter agreement, taken as a whole (other than as set forth in the confidential Private Placement Memorandum of the Partnership or the Partnership Agreement), unless, in any such case, the Investor is offered the opportunity to receive such rights and benefits of such Side Letter reasonably applicable to the Investor by receiving a copy of such Side Letter, which may be redacted by the General Partner to remove any identifying information, including the name and address of the respective investor. Notwithstanding the foregoing, the Investor acknowledges and agrees that the Investor will not, solely by reason of this paragraph 1, (i) be entitled to appoint a representative or non-voting observer to the Advisory Committee, (ii) be entitled to receive any rights or benefits established in favor of (A) the General Partner, its Affiliates or their respective partners, members, directors, shareholders, advisors or employees, (B) any other investor by reason of the fact that such other investor is subject to any laws, rules, regulations or operating or investment policies to which the Investor is not also subject or (C) any other -Active,! 1969154.4
investor based solely on the place of organization, or headquarters of, organizational form of, or other particular restriction applicable to such investor, (III) be entitled to receive any rights or benefits relating to (x) the transfer of interests in the Partnership, any Alternative Vehicle or any Parallel Fund, (y) the admission to the Partnership, any Alternative Vehicle or any Parallel Fund of a substituted investor or (z) the provision or disclosure, or procedures relating to the provision or disclosure, by or to an investor or agent thereof of confidential information concerning the Partnership, any Alternative Vehicle or any Parallel Fund or a partner or a portfolio company thereof or such investor s or agent s use or disclosure of any of such information; provided that, to the extent any Side Letter subject to this paragraph I contains any rights with regard to the ability to transfer interests in the Partnership, any Alternative Vehicle or any Parallel Fund, and such rights are relevant to, and derived from circumstances applicable to, the Investor, the General Partner would expect to offer any such rights to the Investor, or (iv) have the right to receive copies of, or elect any rights or benefits granted in, any Side Letter to another investor making a Capital Commitment to the Partnership or a capital commitment to any Parallel Fund that, together with the Capital Commitments of such investor s affiliates to the Partnership and the capital commitments of such investor s affiliates to any Parallel Fund (such aggregate Capital Commitments being referred to herein collectively as such investor s "Applicable Commitment"), is in the aggregate greater than the Investor s Applicable Commitment. Persons that share a common portfolio investment adviser shall be treated as "affiliates" solely for purpose of this paragraph 1 if such Persons have requested such treatment and such treatment has been approved in writing by the General Partner prior to such Person s admission to the Partnership or any Parallel Fund. The Investor shall notify the Partnership in writing, within thirty (30) days after the date it has been offered the opportunity to receive such rights and benefits, of its election to receive any such right or benefit so offered. For the avoidance of doubt, in the event that any rights that the Investor seeks are subject to any restriction(s), limitation(s) or obligation(s), then the grant of such rights to the Investor will be contingent upon its agreement to be bound by any such restriction(s), limitation(s) or obligation(s). 2. The Investor hereby represents that it is a fund-of-funds or similar type of collective investment vehicle having reporting obligations to its limited partners or other investors and hereby elects the benefits of Section 10.11.3 of the Partnership Agreement in order to satisfy such reporting obligations. 3. The Investor hereby notifies the General Partner that it desires to participate in Co-Investments pursuant to Section 6.3.2(h) of the Partnership Agreement. The General Partner acknowledges that the Investor s subscription for a Capital Commitment has been accepted by the General Partner, on behalf of the Partnership, as of the First Closing Date and agrees that the Investor will be treated as a Priority Co-Investor for purposes of Section 6.3.2(m) of the Partnership Agreement. [signature page follows) -Active. t 1969154,4
This letter agreement shall apply to the Partnership and Alternative Vehicles, and to the General Partner and any general partner or Person serving in a similar capacity with respect to an Alternative Vehicle. For purposes hereof, reference to the "Partnership" shall include all Alternative Vehicles, reference to the "Partnership Agreement shall include all AIV Agreements and references to the "General Partner" shall include any Person serving in a similar capacity with respect to an Alternative Vehicle. This letter agreement is binding on and enforceable against the Partnership, the General Partner and the Investor notwithstanding any contrary provisions in the Partnership Agreement, and in the event of a conflict between the provisions of this letter agreement and the Partnership Agreement, the provisions of this letter agreement shall control with respect to the Investor. This letter agreement may be executed in multiple counterparts, which, when taken together, shall constitute one and the same agreement. If any provision of this letter agreement is invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. This letter agreement may not be modified or amended or the rights of any party hereunder waived unless such modification, amendment or waiver is effected by a written instrument expressly modifying, amending or waiving this letter agreement or the rights of a party hereunder, which instrument is executed by all parties. This letter agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to otherwise governing principles of conflicts of law. Sincerely, By: KKR Associates Mezzanine I L.P., By: KKR Mezzanine GP LLC, Title: Vice President Acknowledged and Agreed to: By: Title: -Active.1 1969154.4
Side Letter 6 March 31, 2010 Ladies and Gentlemen: Reference is made to the Amended and Restated Limited Partnership Agreement of KKR Mezzanine Partners I L.P. (the "Partnership"), dated as of March 31, 2010, as amended (the "Partnership Agreement"), among KKR Associates Mezzanine I L.P., as general partner of the Partnership (the "General Partner"), and the limited partners thereof (the "Limited Partners"). (the "Investor") is, contemporaneously herewith, subscribing for an interest as a Limited Partner of the Partnership and, assuming satisfaction of the conditions contained in the subscription agreement executed by the Investor (the "Subscription Agreement") and acceptance thereof, will become a Limited Partner. Capitalized terms used herein without definition have the same meanings as in the Partnership Agreement. In consideration of the Capital Commitment made by the Investor, and for so long as the Investor (i) maintains the Capital Commitment and (ii) is not a Defaulting Limited Partner under the Partnership Agreement, the Investor and the Partnership, agree as follows: 1. Except as set forth in the last sentence of Section 10.17 of the Partnership Agreement, none of the Partnership, any Parallel Fund, the General Partner nor any general partner (or, in the case of a Parallel Fund that is not a limited partnership, any entity serving in a similar capacity) of any Parallel Fund has entered into or shall enter into any side letter or similar agreement (including any Parallel Fund governing documents) with any existing or future investor in the Partnership or any Parallel Fund in connection with the investment of such investor in the Partnership or any Parallel Fund (a "Side Letter") that has the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect than the rights and benefits established in favor of the Investor by the Partnership Agreement or pursuant to this letter agreement, taken as a whole (other than as set forth in the confidential Private Placement Memorandum of the Partnership or the Partnership Agreement), unless, in any such case, the Investor is offered the opportunity to receive such rights and benefits of such Side Letter reasonably applicable to the Investor by receiving a copy of such Side Letter, which may be redacted by the General Partner to remove any identifying information, including the name and address of the respective investor. Notwithstanding the foregoing, the Investor acknowledges and agrees that the Investor will not, solely by reason of this paragraph 1, (i) be entitled to appoint a representative or non-voting observer to the Advisory Committee, (U) be entitled to receive any rights or benefits established in favor of (A) the General Partner, its Affiliates or their respective partners, members, directors, shareholders, advisors or employees, (B) any other -Active.! 1966249.8
investor by reason of the fact that such other investor is subject to any laws, rules, regulations or operating or investment policies to which the Investor is not also subject or (C) any other investor based solely on the place of organization, or headquarters of, organizational form of, or other particular restriction applicable to such investor, (III) be entitled to receive any rights or benefits relating to (x) the transfer of interests in the Partnership, any Alternative Vehicle or any Parallel Fund, (y) the admission to the Partnership, any Alternative Vehicle or any Parallel Fund of a substituted investor or (z) the provision or disclosure, or procedures relating to the provision or disclosure, by or to an investor or agent thereof of confidential information concerning the Partnership, any Alternative Vehicle or any Parallel Fund or a partner or a portfolio company thereof or such investor s or agent s use or disclosure of any of such information; provided that, to the extent any Side Letter subject to this paragraph 1 contains any rights with regard to the ability to transfer interests in the Partnership, any Alternative Vehicle or any Parallel Fund, and such rights are relevant to, and derived from circumstances applicable to, the Investor, the General Partner would expect to offer any such rights to the Investor, or (iv) have the right to receive copies of, or elect any rights or benefits granted in, any Side Letter to another investor making a Capital Commitment to the Partnership or a capital commitment to any Parallel Fund that, together with the Capital Commitments of such investor s affiliates to the Partnership and the capital commitments of such investor s affiliates to any Parallel Fund (such aggregate Capital Commitments being referred to herein collectively as such investor s Applicable Commitment"), is in the aggregate greater than the Investor s Applicable Commitment. Persons that share a common portfolio investment adviser shall be treated as affiliates" solely for purpose of this paragraph 1 if such Persons have requested such treatment and such treatment has been approved in writing by the General Partner prior to such Person s admission to the Partnership or any Parallel Fund. The Investor shall notify the Partnership in writing, within thirty (30) days after the date it has been offered the opportunity to receive such rights and benefits, of its election to receive any such right or benefit so offered. For the avoidance of doubt, in the event that any rights that the Investor seeks are subject to any restriction(s), limitation(s) or obligation(s), then the grant of such rights to the Investor will be contingent upon its agreement to be bound by any such restriction(s), limitation(s) or obligation(s). 2. The Investor hereby notifies the General Partner that it desires to participate in Co-Investments pursuant to Section 6.3.2(h) of the Partnership Agreement. The General Partner acknowledges that the Investor s subscription for a Capital Commitment has been accepted by the General Partner, on behalf of the Partnership, as of the First Closing Date and agrees that the Investor or any of its Affiliates will be treated as a Priority Co-Investor for purposes of Section 6.3.2(m) of the Partnership Agreement. 3, The Investor will be entitled to designate one member of the Advisory Committee for as long as the Investor retains its original Capital Commitment to the Partnership and is not a Defaulting Limited Partner under the Partnership Agreement. 4, The General Partner hereby agrees that it will consent to the Transfer by the Investor, pursuant to Section 8.1 of the Partnership Agreement, of its Partnership Interest (including its rights and obligations under this letter agreement) to one or more of its Affiliates (the "Transferee"), and to the admission of such Transferee as a Substitute Limited Partner. Consent pursuant to this paragraph 4 will only be granted if (a) such Transferee makes the covenant required by Section 8.1 of the Partnership Agreement, (b) the conditions set forth in Sections 8.4 and 8.7 (other than -Active. 11966249.8
paragraphs (a) and (c) of Section 8.7) of the Partnership Agreement are satisfied and (c) the Transferee provides as to itself the same financial information and other documentation provided by the Investor in connection with the Partnerships obtaining a credit facility. For these purposes, the General Partner shall deem paragraph (b) of Section 8.7 of the Partnership Agreement satisfied if the General Partner receives (i) a copy of the fully executed instrument effecting the Transfer; (H) an original of the Partnership s standard form agreement to admit a Substitute Limited Partner, executed by a duly authorized representative of the Investor and a duly authorized representative of the Transferee; (Hi) an original eligibility questionnaire in the Partnership s then-current standard form completed and executed by the Transferee; and (iv) completed and signed original IRS Form(s) regarding the tax status of the Transferee. 5. The General Partner confirms that it does not intend to have the Partnership engage in any transaction that, as of the date the Partnership enters into a binding contract to engage in such transactions, is a "listed transaction" or a "prohibited reportable transaction" (each as defined in Section 4965(e) of the Code). If the General Partner reasonably determines that the Partnership has engaged in a transaction that is a listed transaction or a prohibited reportable transaction, the General Partner will promptly notify the Investor of such determination. -Active.l 1966249.8 3
This letter agreement shall apply to the Partnership and Alternative Vehicles, and to the General Partner and any general partner or Person serving in a similar capacity with respect to an Alternative Vehicle. For purposes hereof, reference to the "Partnership" shall include all Alternative Vehicles, reference to the "Partnership Agreement" shall include all AlV Agreements and references to the "General Partner" shall include any Person serving in a similar capacity with respect to an Alternative Vehicle. This letter agreement is binding on and enforceable against the Partnership, the General Partner and the Investor notwithstanding any contrary provisions in the Partnership Agreement, and in the event of a conflict between the provisions of this letter agreement and the Partnership Agreement, the provisions of this letter agreement shall control with respect to the Investor. This letter agreement may be executed in multiple counterparts, which, when taken together, shall constitute one and the same agreement. If any provision of this letter agreement is invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. This letter agreement may not be modified or amended or the rights of any party hereunder waived unless such modification, amendment or waiver is effected by a written instrument expressly modifying, amending or waiving this letter agreement or the rights of a party hereunder, which instrument is executed by all parties. This letter agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to otherwise governing principles of conflicts of law. Sincerely, By: KKR Associates Mezzanine I L.P., By: KKR Mezzanine GP LLC, IJ Title: Vice President Acknowledged and Agreed to: an Title: -Active, 11966249.8
Side Letter 9 December 30, 2010 Ladies and Gentlemen: Reference is made to the Amended and Restated Limited Partnership Agreement of KKR Mezzanine Partners I L.P. (the Partnership"), dated as of March 31, 2010, as amended (the "Partnership Agreement"), among KKR Associates Mezzanine I LP., as general partner of the Partnership (the "General Partner ), and the limited partners thereof (the "Limited Partners"). (the "Investor") is, contemporaneously herewith, subscribing for an interest as a Limited Partner of the Partnership and, assuming satisfaction of the conditions contained in the subscription agreement executed by the Investor (the "Subscription Agreement") and acceptance thereof, will become a Limited Partner. Capitalized terms used herein without definition have the same meanings as in the Partnership Agreement. In consideration of the Capital Commitment made by the Investor, and for so long as the Investor (i) maintains the Capital Commitment and (ii) is not a Defaulting Limited Partner under the Partnership Agreement, the Investor and the Partnership, agree as follows: "I. The General Partner shall furnish to the Investor as soon as practicable following the Final Closing Date a copy of all side letters or other similar agreements (collectively, the "Side Letters"), or a compendium containing the provisions of such Side Letters, entered into between the General Partner and any other Limited Partner or limited partner of a Parallel Fund in connection with the investment of such investor in the Partnership or such Parallel Fund that have the effect of establishing rights under, or altering or supplementing the terms of, the Partnership Agreement, any Subscription Agreement or the partnership agreement or subscription agreement of any Parallel Fund or Feeder Fund in a manner more favorable than the rights and benefits established in favor of the Investor by the Partnership Agreement or pursuant to this letter agreement, taken as a whole. The Investor shall be entitled to receive substantially the same rights and benefits (but subject to any related obligations, restrictions or limitations) granted by the General Partner in any Side Letter delivered to the Investor pursuant to the prior sentence that was entered into with an Applicable Investor (as defined below), to the extent reasonably applicable to the Investor (as determined by the General Partner in good faith), other than any rights or benefits relating to, or derived from: (a) designating a representative to be appointed to serve as a member or non-voting observer of the Advisory Committee; 05205-0003-10680Aotive. 12223935
(b) the transfer of interests in the Partnership, a Parallel Fund or a Feeder Fund or the admission of any Person as a substitute partner therein; (c) the manner in which notice shall be provided; ( the provision to or disclosure by such Applicable Investor or agent thereof of confidential information; (e) any laws, rules, regulations or policies to which the Applicable Investor is subject but to which the Investor is not also subject; (fl the place of organization, or headquarters of, organizational form of, or other particular restriction applicable to such Applicable Investor but not applicable to the Investor; or (g) such Applicable Investor but not the Investor pursuant to the Partnership Agreement. The Investor shall be required to notify the General Partner in writing of the rights and benefits that it wshes to receive within 30 days of receipt of such Side Letters or compendium. The General Partner may redact such Side Letters or compendium to remove any identifying information. For purposes of this paragraph 1, "Applicable Investor" shall mean any other Limited Partner (other than the Special Limited Partner, Affiliates of the General Partner or their partners, members, directors, shareholders, advisors or employees) or limited partner of a Parallel Fund or Feeder Fund (other than the special limited partner of a Parallel Fund, Affiliates of the General Partner or their partners, members, directors, shareholders, advisors or employees) whose aggregate capital commitment is equal to or less than the Investor s aggregate capital commitment (for purposes of this sentence, aggregate capital commitment" shall include capital commitments to the Partnership, the Parallel Funds and the Feeder Funds of such Person and, to the extent determined appropriate by the General Partner : such Person s Affiliates). 2. The General Partner agrees that, in connection with any sale by the Partnership of any Portfolio Company securities for the account of the Investor pursuant to Section 5.8.1 of the Partnership Agreement, the General Partner will use all reasonable efforts to achieve the best possible price under the circumstances for the benefit of the Investor; provided that the Investor will have no claim based upon the price achieved against the Partnership or the General Partner following such sale which, pursuant to Section 5.8.1, will be made on terms mutually agreeable to the General Partner and the Investor. 3. Upon reasonable notice from the Investor in advance of any distribution of securities, the General Partner will use commercially reasonable efforts to make such distribution for the Investor into an account identified in writing by the investor, which account may be established by or for the benefit of the Investor for the purpose of managing and liquidating securities distributed to the Investor by the Partnership. O 205-0003-10680-Active.12223935
4. The General Partner shall use reasonable efforts to amend the Advisory Agreement pursuant to Section 8.5 thereof and Section 6.3.1(e) of the Partnership Agreement to make the amendment attached as Exhibit A hereto within 5 Business Days of the date hereof. 5. The General Partner hereby agrees that, in the event the Investor exercises its rights pursuant to 17-305(a)(3) of the Act, the General Partner shall provide the Investor with access to such information in accordance with 17-305 of the Act; provided that such information may be redacted by the General Partner to remove identifying information with respect to one or more Limited Partners to the extent necessary to comply with confidentiality obligations of the General Partner with respect to such Limited Partners. 6. The General Partner hereby acknowledges the Investor s commitment to social responsibility and that the Investor is a signatory to the "Principles For Responsible Investment". The General Partner also acknowledges the importance of the UN Global Compact s ten principles in the areas of human rights, labor, the environment and anti-corruption. The General Partner confirms that it will consider environmental, social and governance issues, including those relevant to the UN Global Compact s ten principles, in the course of its due diligence and monitoring of Portfolio Investments to the extent reasonably practical under the circumstances and subject, in any event, to the provisions of the Partnership Agreement and the Memorandum (including the investment objectives of the Partnership set forth therein) and the duty of the General Partner to seek to maximize the returns on investment for all of the Partners of the Partnership. The General Partner agrees, at the request of the Investor, to develop with the Investor (i) a form of annual report regarding the Partnership s management of environmental, social and governance issues, including those relevant to the UN Global Compact s ten principles, to be provided to the Investor within 90 days of the end of each Fiscal Year and (U) a form of report regarding environmental, social and governance issues, including those relevant to the UN Global Compact s ten principles, at individual Portfolio Companies to be provided to the Investor within 90 days of the Partnership s investment in each Portfolio Company; provided that, in each case, the General Partner will not be required to disclose any information the disclosure of which the General Partner in good faith believes is not in the best interests of the Partnership or any Portfolio Company or could damage the Partnership or such Portfolio Company or their respective businesses or which the Partnership or such Portfolio Company is required by law or by agreement with a third party to keep confidential. 7. (a) This letter agreement shall apply to the Partnership and Alternative Vehicles, and to the General Partner and any general partner or Person serving in a similar capacity with respect to an Alternative Vehicle. For purposes hereof, reference to the "Partnership" shall include all Alternative Vehicles, reference to the "Partnership Agreement" shall include all AN Agreements and references to the "General Partner" shall include any Person serving in a similar capacity with respect to an Alternative Vehicle. 051205.0003-10680-Active. 12223935
(b) This letter agreement is binding on and enforceable against the Partnership, the General Partner and the Investor notwithstanding any contrary provisions in the Partnership Agreement or the Subscription Agreement, and in the event of a conflict between the provisions of this letter agreement and the Partnership Agreement or the Subscription Agreement, the provisions of this letter agreement shall control with respect to the Investor. (c) This letter agreement may be executed in multiple counterparts, which, when taken together, shall constitute one and the same agreement. (d) If any provision of this letter agreement is invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. (e) This letter agreement may not be modified or amended or the rights of any party hereunder waived unless such modification, amendment or waiver is effected by a written instrument expressly modifying, amending or waiving this letter agreement or the rights of a party hereunder, which instrument is executed by all parties. (f) This letter agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to otherwise governing principles of conflicts of law. Sincerely, By: KKR Associates Mezzanine I L.P., By: KKR Mezzanine GP LLC, Title: Manager Acknowledged and Agreed to: By: Title: 051205-0003-10680-Active. 12223935
Exhibit A Proposed Amendments to the Advisory Agreement Section 2.1: Management Fee In consideration for the services to be provided by the Advisor hereunder, the Fund will pay or, subject to Section 3.3.1 of the Partnership Agreement, if payable prior to the Initial Investment Date, cause the Limited Partners to pay to the Advisor or an Affiliate thereof designated by the Advisor, and the Advisor or such Affiliate will be entitled to receive from the Fund or the Limited Partners, as applicable, a fee (the "Management Fee"). Until the earlier to occur of the end of the Investment Period or the permanent reduction of Unused Capital Commitments to $150,000,000 or less (but only to the extent such permanent reduction occurs subsequent to the Final Closing Date) (determined contemporaneously with a Capital Call Notice), the Management Fee will be payable quarterly, commencing on the date that is not earlier than 30 days after the First Closing Date in an amount equal to 1.5% per annum of the aggregate Capital Commitments of all of the Limited Partners (regardless of the amount of Unused Capital Commitments). Commencing one quarter after the final payment made pursuant to the preceding sentence and until the end of the tenth anniversary of the First Closing Date, the Management Fee will be payable quarterly by the Fund and, if applicable, any Alternative Vehicle, in an amount equal to 1.25% per annum of the weighted average of the aggregate Capital Contributions of all of the Limited Partners allocable to Portfolio Investments held by the Fund or any Alternative Vehicle, as applicable, during the most recent calendar quarter ending prior to the payment date (and with respect to which a Disposition or Bankruptcy (with no reasonable expectation of recovery) has not occurred). Thereafter, the Management Fee will be reduced to a rate equal to 0.5% per annum until the completion of the dissolution, winding-up and termination of the Fund and any Alternative Vehicles. All Management Fees will be payable on the dates set forth above (or such later dates as determined by the General Partner in its sole discretion) or, in the case of an Additional Limited Partner, on the date of such Additional Limited Partner s admission (or such later date as determined by the General Partner in its sole discretion) and thereafter on the dates set forth above. No Management Fee will be payable with respect to the interest of a Limited Partner that is KKR or a KKR Affiliate. In addition to the foregoing, the Fund will pay to the Advisor the amount of any Break-up Fees received by the Fund as soon as practicable after receipt of such fees. Except as expressly provided in the Partnership Agreement or this Agreement, the Advisor is not entitled to any other fees or compensation from the Fund. 051205-0003-10680-Active. 12223935
Side Letter 10 April 11, 2011 Ladies and Gentlemen: Reference is made to the Amended and Restated Limited Partnership Agreement of KKR Mezzanine Partners I L.P. (the Partnership"), dated as of March 31 2010, as amended (the Partnership Agreement"), among KKR Associates Mezzanine I L.P., as general partner of the Partnership (the General Partner"), and the limited partners thereof (the Limited Partners ). (formerly known as the Original Investor") was admitted as a Limited Partner on March 31, 2010 and transferred all of its interests as a Limited Partner to an affiliate of the Original Investor (the New Investor") as of March 31, 2011 (the Transfer"). Capitalized terms used herein without definition have the same meanings as in the Partnership Agreement. In consideration of the Capital Commitment made by the Original Investor and transferred to the New Investor, and for so long as the New Investor (i) maintains the Capital Commitment and (H) is not a Defaulting Limited Partner under the Partnership Agreement, the New Investor and the Partnership agree as follows: 1. The Original Investor notified the General Partner that it desired to participate in Co-Investments pursuant to Section 6.3.2(h) of the Partnership Agreement. The General Partner acknowledges that the Original Investor s subscription for a Capital Commitment was accepted by the General Partner, on behalf of the Partnership, as of the First Closing Date and that the General Partner agreed that the Original Investor would be treated as a Priority Co-Investor for purposes of Section 6.3.2(m) of the Partnership Agreement. Further, the General Partner hereby agrees that the New Investor, pursuant to the Transfer, will be treated as a Priority Co-Investor for purposes of Section 6.3.2(m) of the Partnership Agreement. For the avoidance of doubt, the parties acknowledge that pursuant to the terms of the Partnership Agreement, the New Investor has no obligation to participate in any Co-Investment offered to the New Investor pursuant to Section 6.3.2(h). (signature page follows]
This letter agreement shall apply to the Partnership and Alternative Vehicles, and to the General Partner and any general partner or Person serving in a similar capacity with respect to an Alternative Vehicle. For purposes hereof, reference to the "Partnership" shall include all Alternative Vehicles, reference to the "Partnership Agreement" shall include all AIV Agreements and references to the "General Partner" shall include any Person serving in a similar capacity with respect to an Alternative Vehicle. This letter agreement is binding on and enforceable against the Partnership, the General Partner and the Investor notwithstanding any contrary provisions in the Partnership Agreement, and in the event of a conflict between the provisions of this letter agreement and the Partnership Agreement, the provisions of this letter agreement shall control with respect to the Investor. This letter agreement may be executed in multiple counterparts, which, when taken together, shall constitute one and the same agreement. If any provision of this letter agreement is invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. This letter agreement may not be modified or amended or the rights of any party hereunder waived unless such modification, amendment or waiver is effected by a written instrument expressly modifying, amending or waiving this letter agreement or the rights of a party hereunder, which instrument is executed by all parties. This letter agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to otherwise governing principles of conflicts of law. Sincerely, By: KKR Associates Mezzanine I L.P., By: KKR Mezzanine GP LLC, By: Title: Acknowledged and Agreed to: Title:
Execution Copy Side Letter 11 April 1, 2011 Ladies and Gentlemen: Reference is made to the Amended and Restated Limited Partnership Agreement of KKR Mezzanine Partners I L.P. (the "Partnership"), dated as of March 31, 2010, as amended (the "Partnership Agreement"), among KKR Associates Mezzanine I L.P., as general partner of the Partnership (the "General Partner"), and the limited partners thereof (the "Limited Partners"). the "Investor") is, contemporaneously herewith, subscribing for an interest as a Limited Partner of the Partnership and, assuming satisfaction of the conditions contained in the subscription agreement executed by the Investor (the "Subscription Agreement") and acceptance thereof, will become a Limited Partner. Capitalized terms used herein without definition have the same meanings as in the Partnership Agreement. In consideration of the Capital Commitment made by the Investor, and for so long as the Investor (i) maintains the Capital Commitment and (ii) is not a Defaulting Limited Partner under the Partnership Agreement, the Investor and the Partnership, agree as follows: 1. In view of the written materials provided to the General Partner by the Investor, the General Partner acknowledges that the Investor has entered into a secured credit facility (the "Credit Facility") with the "Lender") pursuant to which the Investor has pledged (the "Pledge") all of its Partnership Interest (the "Secured Interest") as collateral for amounts drawn under the Credit Facility and, pursuant to the Credit Facility, the Lender will have certain rights of enforcement that will include the Secured Interest. In connection with the foregoing, the General Partner hereby consents to and approves, as of the date of the Investor s admission to the Partnership and solely for purposes of Section 8.3 of the Partnership Agreement, the creation of the Pledge in the Secured Interest as set forth in this paragraph and the General Partner agrees that should the Investor default on its obligations under the Credit Facility, the Lender shall be entitled to receive the proceeds of all distributions from the Fund to the Investor with respect to the Secured Interest for so long as such default continues; provided that the Credit Facility and the creation of the Pledge do not otherwise affect any of the obligations of the Investor or impose any additional obligations on the Partnership or the General Partner (including, without limitation, those relating to the qualification or registration of the Partnership or the General Partner under any applicable securities laws or regulatory requirements); provided further, that any exercise by the Lender of Active. 12238563
Execution Copy its rights pursuant to the Credit Facility that relate to the Secured Interest shall be subject to (A) the requirements, limitations and conditions set forth in Section 8 of the Partnership Agreement, (B) the Lender giving to the General Partner s reasonable satisfaction the same representations, warranties and undertakings as the Investor has given in its Subscription Agreement or as the General Partner shall otherwise reasonably require and (C) the Lender agreeing to assume the obligations of the Investor under the Partnership Agreement, the Subscription Agreement and this letter agreement. 2. (a) This letter agreement shall apply to the Partnership and Alternative Vehicles, and to the General Partner and any general partner or Person serving in a similar capacity with respect to an Alternative Vehicle. For purposes hereof, reference to the "Partnership" shall include all Alternative Vehicles, reference to the "Partnership Agreement" shall include all AIV Agreements and references to the "General Partner" shall include any Person serving in a similar capacity With respect to an Alternative Vehicle. (b) This letter agreement is binding on and enforceable against the Partnership, the General Partner and the Investor notwithstanding any contrary provisions in the Partnership Agreement or the Subscription Agreement, and in the event of a conflict between the provisions of this letter agreement and the Partnership Agreement or the Subscription Agreement, the provisions of this letter agreement shall control with respect to the Investor. (c) This letter agreement may be executed in multiple counterparts, which, when taken together, shall constitute one and the same agreement. (d) If any provision of this letter agreement is invalid, illegal or unenforceable in any respect, the validity, regality and enforceability of the remaining provisions contained herein shall not be affected thereby. (e) This Fetter agreement may not be modified or amended or the rights of any party hereunder waived unless such modification, amendment or waiver is effected by a written instrument expressly modifying, amending or waiving this letter agreement or the rights of a party hereunder, which instrument is executed by all parties. (f) This letter agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to otherwise governing principles of conflicts of law. Sincerely, By: KKR Associates Mezzanine I L.P., By: KKR Mezzanine GP LLC, Title: -Active. 12238563
Execution Copy Acknowledged and Agreed to: By: Title: -Active. 122385 63
Execution Copy Side Letter 12 April 1, 2011 Ladies and Gentlemen: Reference is made to the Amended and Restated Limited Partnership Agreement of KKR Mezzanine Partners I L.P. (the Partnership"), dated as of March 31, 2010, as amended (the "Partnership Agreement"), among KKR Associates Mezzanine I L.P., as general partner of the Partnership (the "General Partner"), and the limited partners thereof (the "Limited Partners"). the "Investor") is, contemporaneously herewith, subscribing for an interest as a Limited Partner of the Partnership and, assuming satisfaction of the conditions contained in the subscription agreement executed by the Investor (the "Subscription Agreement") and acceptance thereof, will become a Limited Partner. Capitalized terms used herein without definition have the same meanings as in the Partnership Agreement. In consideration of the Capital Commitment made by the Investor, and for so long as the Investor (i) maintains the Capital Commitment and (ii) is not a Defaulting Limited Partner under the Partnership Agreement, the Investor and the Partnership, agree as follows: 1. The Investor represents that it is a Governmental Plan prohibited from agreeing to the indemnification obligations set forth in the Subscription Agreement by its governing documents and the interpretation of the - nd by the Investor s legal counsel. Accordingly, the General Partner agrees that the Investor shall have no direct obligation to make any indemnification payment under the terms of the Subscription Agreement; provided that the foregoing shall not relieve the Investor of (a) any liability, or constitute a waiver of any other rights or remedies that the General Partner may have to recover from the Investor, for any losses arising out of or based upon any false representation or warranty or breach or failure by the Investor to comply with any covenant or agreement made by Investor in its Subscription Agreement; or (b) any obligation the Investor may otherwise have under the Partnership Agreement or the Subscription Agreement generally to make Capital Contributions or other payments to the Fund in accordance with the terms and conditions thereof. 2. (a) This letter agreement is binding on and enforceable against the Partnership, the General Partner and the Investor notwithstanding any contrary provisions in the Partnership Agreement or the Subscription Agreement, and in the event of a conflict between the provisions of this letter agreement and the Partnership Agreement or the Subscription Agreement, the provisions of this letter agreement shall control with respect to the Investor.
Execution Copy (b) This letter agreement maybe executed in multiple counterparts, which, when taken together, shall constitute one and the same agreement. (d) If any provision of this letter agreement is invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. (e) This letter agreement may not be modified or amended or the rights of any party hereunder waived unless such modification, amendment or waiver is effected by a written instrument expressly modifying, amending or waiving this letter agreement or the rights of a party hereunder, which instrument is executed by all parties. (f) This letter agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to otherwise governing principles of conflicts of law. Sincerely, By: KKR Associates Mezzanine I L.P., By: KKR Mezzanine GP LLC, Title: Acknowledged and Agreed to: By: Title:
Execution Version Side Letter 13 June 2, 2011 Ladies and Gentlemen: Reference is made to the Amended and Restated Limited Partnership Agreement of KKR Mezzanine Partners I L.P. (the "Partnership"), dated as of March 31, 2010, as amended (the "Partnership Agreement"), among KKR Associates Mezzanine I L.P., as general partner of the Partnership (the General Partner"), and the limited partners thereof (the "Limited Partners"). (the "Investor") is, contemporaneously herewith, subscribing for an interest as a Limited Partner of the Partnership and, assuming satisfaction of the conditions contained in the subscription agreement executed by the Investor (the "Subscription Agreement") and acceptance thereof, will become a Limited Partner. Capitalized terms used herein without definition have the same meanings as in the Partnership Agreement. In consideration of the Capital Commitment made by the Investor, and for so long as the Investor (i) maintains the Capital Commitment and (ii) is not a Defaulting Limited Partner under the Partnership Agreement, the Investor and the Partnership, agree as follows: 1. With respect to the Investor, Section 3.2.7(v) of the Subscription Agreement is hereby deleted in its entirely and replaced with the following: "(v) If the undersigned is (A) a plan established and maintained by a state, its political subdivisions or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees or (B) an "employee benefit plan" within the meaning of ERISA, the undersigned is an involuntary or compulsory defined benefit plan." 2. The Investor hereby represents and warrants that it is subject to an internal Placement Agent Policy attached hereto as Exhibit A (the "Policy") regarding placement agents. In connection with the foregoing, the General Partner confirms that it has delivered to the Investor an executed acknowledgement containing the information required thereby (the "Placement Agent Disclosure") and that the information contained in the Placement Agent Disclosure is true, correct and complete in all material respects as of the date hereof. 3. (a) This letter agreement shall apply to the Partnership and Alternative Vehicles, and to the General Partner and any general partner or Person serving in a similar capacity with respect to an Alternative Vehicle. For purposes hereof, reference to the "Partnership" shall include all Alternative Vehicles, reference to the "Partnership Agreement" shall include all AIV Agreements and references to the "General Partner" shall include any Person serving in a similar capacity with respect to an Alternative Vehicle..Active 12384112
Execution Version (b) This letter agreement is binding on and enforceable against the Partnership, the General Partner and the Investor notwithstanding any contrary provisions in the Partnership Agreement or the Subscription Agreement, and in the event of a conflict between the provisions of this letter agreement and the Partnership Agreement or the Subscription Agreement, the provisions of this letter agreement shall control with respect to the Investor. (c) This letter agreement may be executed in multiple counterparts, which, when taken together, shall constitute one and the same agreement. (d) If any provision of this letter agreement is invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. (e) This letter agreement may not be modified or amended or the rights of any party hereunder waived unless such modification, amendment or waiver is effected by a wrtten instrument expressly modifying, amending or waiving this letter agreement or the rights of a party hereunder, which instrument is executed by all parties. (f) This letter agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to otherwise governing principles of conflicts of law. Sincerely, By: KKR Associates Mezzanine I L.P., By: KKR Mezzanine GP LLC, Title: Acknowledged and Agreed to: By: - Title: -Active 12384112