Exhibit 10.2


 




 





AMENDED AND RESTATED LIMITED PARTNERSHIP
AGREEMENT


 


OF


 


KKR FUND HOLDINGS L.P.


 


Dated as of           , 2008




 





 


THE PARTNERSHIP UNITS OF KKR FUND HOLDINGS L.P. HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, THE SECURITIES
LAWS OF ANY STATE, PROVINCE OR ANY OTHER APPLICABLE SECURITIES LAWS AND ARE
BEING SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND SUCH LAWS.  SUCH
UNITS MUST BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR
SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT
IN COMPLIANCE WITH (I) THE SECURITIES ACT, ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OR PROVINCE, AND ANY OTHER APPLICABLE SECURITIES LAWS; AND (II) THE
TERMS AND CONDITIONS OF THIS AMENDED AND RESTATED LIMITED PARTNERSHIP
AGREEMENT.  THE UNITS MAY NOT BE
TRANSFERRED OF RECORD EXCEPT IN COMPLIANCE WITH SUCH LAWS AND THIS LIMITED
PARTNERSHIP AGREEMENT.  THEREFORE,
PURCHASERS AND OTHER TRANSFEREES OF SUCH UNITS WILL BE REQUIRED TO BEAR THE
RISK OF THEIR INVESTMENT OR ACQUISITION FOR AN INDEFINITE PERIOD OF TIME.


 

















 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II 

  	
   

  
	
   

  	
   

  
	
  FORMATION, TERM, PURPOSE AND POWERS

  	
   

  
	
   

  	
   

  
	
  SECTION 2.01.

  	
  Formation

  	
  8

  
	
  SECTION 2.02.

  	
  Name

  	
  8

  
	
  SECTION 2.03.

  	
  Term

  	
  8

  
	
  SECTION 2.04.

  	
  Offices

  	
  8

  
	
  SECTION 2.05.

  	
  Registered Office

  	
  8

  
	
  SECTION 2.06.

  	
  Business Purpose

  	
  8

  
	
  SECTION 2.07.

  	
  Powers of the Partnership

  	
  9

  
	
  SECTION 2.08.

  	
  Partners; Admission of New
  and Substitute Limited Partners

  	
  9

  
	
  SECTION 2.09.

  	
  Withdrawal

  	
  9

  
	
  SECTION 2.10.

  	
  Initial Limited Partner

  	
  9

  
	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  	
   

  
	
  MANAGEMENT

  	
   

  
	
   

  	
   

  
	
  SECTION 3.01.

  	
  General Partners

  	
  9

  
	
  SECTION 3.02.

  	
  Compensation

  	
  10

  
	
  SECTION 3.03.

  	
  Expenses

  	
  10

  
	
  SECTION 3.04.

  	
  Officers

  	
  10

  
	
  SECTION 3.05.

  	
  Authority of Partners

  	
  11

  
	
  SECTION 3.06.

  	
  Action by Written Consent
  or Ratification

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
  DISTRIBUTIONS

  	
   

  
	
   

  	
   

  
	
  SECTION 4.01.

  	
  Distributions

  	
  11

  
	
  SECTION 4.02.

  	
  Liquidation Distribution

  	
  12

  
	
  SECTION 4.03.

  	
  Limitations on
  Distribution

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  	
   

  
	
  CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS;

  	
   

  
	
  TAX ALLOCATIONS; TAX MATTERS

  	
   

  
	
   

  	
   

  
	
  SECTION 5.01.

  	
  Initial Capital
  Contributions

  	
  13

  



 


i

















 


	
  SECTION 5.02.

  	
  No Additional Capital
  Contributions

  	
  13

  
	
  SECTION 5.03.

  	
  Capital Accounts

  	
  13

  
	
  SECTION 5.04.

  	
  Allocations of Profits and
  Losses

  	
  14

  
	
  SECTION 5.05.

  	
  Special Allocations

  	
  14

  
	
  SECTION 5.06.

  	
  Tax Allocations

  	
  15

  
	
  SECTION 5.07.

  	
  Tax Advances

  	
  16

  
	
  SECTION 5.08.

  	
  Tax Matters

  	
  16

  
	
  SECTION 5.09.

  	
  Other Tax Provisions

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
  BOOKS AND RECORDS; REPORTS

  	
   

  
	
   

  	
   

  
	
  SECTION 6.01.

  	
  Books and Records

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  	
   

  
	
  PARTNERSHIP UNITS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Units

  	
  17

  
	
  SECTION 7.02.

  	
  Register

  	
  18

  
	
  SECTION 7.03.

  	
  Registered Partners

  	
  18

  
	
  SECTION 7.04.

  	
  Exchange Transactions

  	
  18

  
	
  SECTION 7.05.

  	
  Transfers; Encumbrances

  	
  18

  
	
  SECTION 7.06.

  	
  Further Restrictions

  	
  19

  
	
  SECTION 7.07.

  	
  Rights of Assignees

  	
  19

  
	
  SECTION 7.08.

  	
  Admissions, Withdrawals
  and Removals

  	
  19

  
	
  SECTION 7.09.

  	
  Admission of Assignees as
  Substitute Limited Partners

  	
  20

  
	
  SECTION 7.10.

  	
  Withdrawal and Removal of
  Limited Partners

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  	
   

  
	
  DISSOLUTION, LIQUIDATION AND TERMINATION

  	
   

  
	
   

  	
   

  
	
  SECTION 8.01.

  	
  No Dissolution

  	
  20

  
	
  SECTION 8.02.

  	
  Events Causing Dissolution

  	
  21

  
	
  SECTION 8.03.

  	
  Distribution upon
  Dissolution

  	
  21

  
	
  SECTION 8.04.

  	
  Time for Liquidation

  	
  22

  
	
  SECTION 8.05.

  	
  Termination

  	
  22

  
	
  SECTION 8.06.

  	
  Claims of the Partners

  	
  22

  
	
  SECTION 8.07.

  	
  Survival of Certain
  Provisions

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
   

  	
   

  
	
  LIABILITY AND INDEMNIFICATION

  	
   

  
	
   

  	
   

  
	
  SECTION 9.01.

  	
  Liability of Partners

  	
  22

  
	
  SECTION 9.02.

  	
  Indemnification

  	
  23

  



 


ii

















 


	
  ARTICLE X

  	
   

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Severability

  	
  25

  
	
  SECTION 10.02.

  	
  Notices

  	
  25

  
	
  SECTION 10.03.

  	
  Cumulative Remedies

  	
  26

  
	
  SECTION 10.04.

  	
  Binding Effect

  	
  26

  
	
  SECTION 10.05.

  	
  Interpretation

  	
  26

  
	
  SECTION 10.06.

  	
  Counterparts

  	
  27

  
	
  SECTION 10.07.

  	
  Further Assurances

  	
  27

  
	
  SECTION 10.08.

  	
  Entire Agreement

  	
  27

  
	
  SECTION 10.09.

  	
  Governing Law

  	
  27

  
	
  SECTION 10.10.

  	
  Arbitration

  	
  27

  
	
  SECTION 10.11.

  	
  Expenses

  	
  28

  
	
  SECTION 10.12.

  	
  Amendments and Waivers

  	
  28

  
	
  SECTION 10.13.

  	
  No Third Party
  Beneficiaries

  	
  29

  
	
  SECTION 10.14.

  	
  Headings

  	
  29

  
	
  SECTION 10.15.

  	
  Construction

  	
  29

  
	
  SECTION 10.16.

  	
  Power of Attorney

  	
  29

  
	
  SECTION 10.17.

  	
  Schedules

  	
  30

  
	
  SECTION 10.18.

  	
  Partnership Status

  	
  30

  



 


iii

















 


AMENDED AND RESTATED LIMITED PARTNERSHIP
AGREEMENT


 


OF


 


KKR FUND HOLDINGS L.P.


 


This AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (this “Agreement”)
of KKR Fund Holdings L.P. (the “Partnership”) is made this            day of              , 2008, by and among KKR &
Co. L.P., a limited partnership formed under the laws of the State of Delaware,
and KKR Fund Holdings GP Limited, an exempted limited company formed under the
laws of the Cayman Islands, as general partners, and the Limited Partners (as
defined herein) of the Partnership.


 


WHEREAS, the Partnership was formed and registered as an exempted
limited partnership pursuant to the Act (as defined herein), by the filing of a
statement with respect to Section 9 of the Act (the “Statement”)
with the Registrar of Exempted Limited Partnerships in the Cayman Islands and
the execution of the Limited Partnership Agreement of the Partnership dated July 23,
2008 (the “Original Agreement”); and


 


WHEREAS, the parties hereto desire to enter into this Amended and
Restated Limited Partnership Agreement of the Partnership and to permit the
admission of the Limited Partners to the Partnership.


 


NOW, THEREFORE, in consideration of the mutual promises and agreements
herein made and intending to be legally bound hereby, the parties hereto agree
to amend and restate the Original Agreement in its entirety to read as follows:


 


ARTICLE I


 


DEFINITIONS


 


SECTION 1.01.           Definitions.  Capitalized terms used herein without
definition have the following meanings (such meanings being equally applicable
to both the singular and plural form of the terms defined):


 


“Act” means the Exempted Limited
Partnership Law (2007 Revision) of the Cayman Islands, as it may be amended
from time to time.


 


“Additional Credit Amount” has the
meaning set forth in Section 4.01(b)(ii).


 


“Adjusted Capital Account Balance”
means, with respect to each Partner, the balance in such Partner’s Capital
Account adjusted (i) by taking into account the adjustments, allocations
and distributions described in Treasury Regulations Sections  1.704-1(b)(2)(ii)(c)(4), (5) and (6);
and (ii) by adding to such balance such Partner’s share of Partnership
Minimum Gain and Partner Nonrecourse Debt Minimum Gain, determined pursuant to
Treasury Regulations Sections 1.704-2(g) and 1.704-2(i)(5), and any
amounts such Partner is obligated to restore pursuant to any provision of this
Agreement or by applicable Law. The foregoing definition of Adjusted Capital
Account Balance is intended 


 


1

















 


to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.


 


“Affiliate” means, with respect to a
specified Person, any other Person that directly, or indirectly through one or
more intermediaries, Controls, is Controlled by, or is under common Control
with, such specified Person.


 


“Agreement” has the meaning set forth
in the preamble of this Agreement.


 


“Amended Tax Amount” has the meaning
set forth in Section 4.01(b)(ii).


 


“Assignee” has the meaning set forth
in Section 7.07.


 


“Assumed Tax Rate” means the highest
effective marginal combined U.S. federal, state and local income tax rate for a
Fiscal Year prescribed for an individual or corporate resident in New York, New
York (taking into account (a) the nondeductiblity of expenses subject to
the limitation described in Section 67(a) of the Code and (b) the
character (e.g., long-term or short-term capital gain or ordinary or exempt
income) of the applicable income, but not taking into account the deductibility
of state and local income taxes for U.S. federal income tax purposes). For the
avoidance of doubt, the Assumed Tax Rate will be the same for all Partners.


 


“Available Cash” means, with respect
to any fiscal period, the amount of cash on hand that a General Partner, in its
reasonable discretion, deems available for distribution to the Partners, taking
into account all debts, liabilities and obligations of the Partnership then due
and amounts that a General Partner, in its reasonable discretion, deems
necessary to expend or retain for working capital or to place into reserves for
customary and usual claims with respect to the Partnership’s operations.


 


“Capital Account” means the separate
capital account maintained for each Partner in accordance with Section 5.03.


 


“Capital Contribution” means, with
respect to any Partner, the aggregate amount of money contributed to the
Partnership and the Carrying Value of any property (other than money), net of
any liabilities assumed by the Partnership upon contribution or to which such
property is subject, contributed to the Partnership pursuant to Article V.


 


“Carrying Value” means, with respect
to any Partnership asset, the asset’s adjusted basis for U.S. federal income tax
purposes, except that the initial carrying value of assets contributed to the
Partnership shall be their respective gross fair market values on the date of
contribution as determined by a General Partner, and the Carrying Values of all
Partnership assets may be adjusted to equal their respective fair market
values, in accordance with the rules set forth in Treasury Regulation Section 1.704-1(b)(2)(iv)(f),
except as otherwise provided herein, as of: (a) the date of the
acquisition of any additional Units by any new or existing Partner in exchange
for more than a de minimis Capital Contribution; (b) the date of the
distribution of more than a de minimis amount of Partnership assets to a
Partner; (c) the date a Unit is relinquished to the Partnership; or (d) any
other date specified in the Treasury Regulations; provided, however, that adjustments 


 


2

















 


pursuant to clauses (a), (b), (c) and (d) above shall be made
only if such adjustments are deemed necessary or appropriate by a General
Partner to reflect the relative economic interests of the Partners. The
Carrying Value of any Partnership asset distributed to any Partner shall be
adjusted immediately before such distribution to equal its fair market value.
In the case of any asset that has a Carrying Value that differs from its
adjusted tax basis, Carrying Value shall be adjusted by the amount of
depreciation calculated for purposes of the definition of “Profits (Losses)”
rather than the amount of depreciation determined for U.S. federal income tax
purposes, and depreciation shall be calculated by reference to Carrying Value
rather than tax basis once Carrying Value differs from tax basis.


 


“Class” means the classes of Units
into which the interests in the Partnership may be classified or divided from
time to time pursuant to the provisions of this Agreement.


 


“Class A Units” means the Units
of partnership interest in the Partnership designated as the “Class A
Units” herein and having the rights pertaining thereto as are set forth in this
Agreement.


 


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


 


“Common Units” means common units
representing limited partner interests of the Issuer.


 


“Contingencies” has the meaning set
forth in Section 8.03(a).


 


“Contributing Sharing Percentage”
means [ ]%(1), provided that if additional Group Partnerships are formed
the percentage shall be adjusted as appropriate to reflect the relative values
of the Group Partnerships at such time and as agreed to in good faith by the
Partners.


 


“Control” (including the terms “Controlled
by” and “under common Control with”) means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities,
as trustee or executor, by contract or otherwise, including, without
limitation, the ownership, directly or indirectly, of securities having the
power to elect a majority of the board of directors or similar body governing
the affairs of such Person.


 


“Credit Amount” has the meaning set
forth in Section 4.01(b)(ii).


 


“Creditable Non-U.S. Tax” means a
non-U.S. tax paid or accrued for U.S. federal income tax purposes by the
Partnership, in either case to the extent that such tax is eligible for credit
under Section 901(a) of the Code. 
A non-U.S. tax is a Creditable Non-U.S. Tax for these purposes without
regard to whether a Partner receiving an allocation of such non-U.S. tax elects
to claim a credit for such amount.  This
definition is intended to be consistent 


 






(1) To be fixed at closing
based on the relative value of the Partnership in comparison with KKR
Management Holdings.


 


3

















 


with the definition of “Creditable Non-U.S. Tax” in Treasury
Regulations Section 1.704-1(b)(4)(viii)(b), and shall be interpreted
consistently therewith.


 


“CVI” means a contingent value
interest of the Issuer issued pursuant to the CVI Agreement.


 


“CVI Agreement” means the Contingent
Value Interests Agreement, dated as of               , 2008 (as amended, supplemented
or otherwise modified from time to time), between the Issuer and The Bank of
New York, as trustee, providing for the issuance of CVIs.


 


“CVI Event of Default” shall have the
meaning assigned to the term Event of Default in the CVI Agreement.


 


“CVI Maturity Date” shall have the
meaning assigned to the term Maturity Date in the CVI Agreement.


 


“CVI Termination” means a CVI Event of
Default or CVI Maturity Date.


 


“Dissolution Event” has the meaning
set forth in Section 8.02.


 


“Encumbrance” means any mortgage,
claim, lien, encumbrance, conditional sales or other title retention agreement,
right of first refusal, preemptive right, pledge, option, charge, security
interest or other similar interest, easement, judgment or imperfection of title
of any nature whatsoever.


 


“ERISA” means the U.S. Employee
Retirement Income Security Act of 1974, as amended.


 


“Exchange Act” means the U.S.
Securities Exchange Act of 1934, as amended, including the rules and
regulations promulgated thereunder.


 


“Exchange Agreement” means the
exchange agreement dated as of or about the date hereof among the Issuer, KKR
Holdings L.P., the Partnership and KKR Management Holdings, as amended from
time to time.


 


“Exchange Transaction” means an
exchange of Units for Common Units pursuant to, and in accordance with, the
Exchange Agreement or, if the Issuer and the exchanging Limited Partner shall
mutually agree, a Transfer of Units to the Issuer, the Partnership or any of
their subsidiaries for other consideration.


 


“Final Tax Amount” has the meaning set
forth in Section 4.01(b)(ii).


 


“Fiscal Year” means (i) the
period commencing upon the formation of the Partnership and ending on December 31,
2008 or (ii) any subsequent twelve-month period commencing on January 1
and ending on December 31.


 


“GAAP” means accounting principles
generally accepted in the United States of America as in effect from time to
time.


 


4














 


“General Partners” means,
collectively,  the Issuer and KKR
Fund Holdings GP Limited, an exempted limited company formed under the laws of
the Cayman Islands, or any successor general partner(s) admitted to the
Partnership in accordance with the terms of this Agreement.


 


“Group Partnerships”  means, collectively,  the Partnership and KKR Management
Holdings (and any future partnership designated as a Group Partnership by the
Issuer (it being understood that such designation may only be made if such
future partnership enters into a group partnership agreement substantially the
same as, and which provides for substantially the same obligations as, the
group partnership agreements then in existence)), and any successors thereto.


 


“Incapacity” means, with respect to
any Person, the bankruptcy, dissolution, termination, entry of an order of
incompetence, or the insanity, permanent disability or death of such Person.


 


“Initial Limited Partner” means
William J. Janetschek.


 


“Issuer” means KKR & Co.
L.P., a Delaware limited partnership, or any successor thereto.


 


“KKR Intermediate Partnership” means
KKR Intermediate Partnership L.P., a Cayman Islands exempted limited
partnership, or any successor thereto.


 


“KKR Management Holdings” means KKR
Management Holdings L.P., a Delaware limited partnership, or any successor
thereto.


 


“KPE” means KKR Private Equity
Investors, L.P., a Guernsey limited partnership, or any successor thereto.


 


“KPE Transaction” means the
transaction contemplated in the Purchase and Sale Agreement.


 


“Law” means any statute, law,
ordinance, regulation, rule, code, executive order, injunction, judgment,
decree or other order issued or promulgated by any national, supranational,
state, federal, provincial, local or municipal government or any administrative
or regulatory body with authority therefrom with jurisdiction over the
Partnership or any Partner, as the case may be, or principles in equity.


 


“Limited Partner” means each of the
Persons from time to time listed as a limited partner in the books and records
of the Partnership.


 


“Liquidation Agent” has the meaning
set forth in Section 8.03.


 


“Net Taxable Income” has the meaning
set forth in Section 4.01(b)(i).


 


“Nonrecourse Deductions” has the
meaning set forth in Treasury Regulations Section 1.704-2(b).  The amount of Nonrecourse Deductions of the
Partnership for a fiscal 


 


5

















 


year equals the net increase, if any, in the amount of Partnership
Minimum Gain of the Partnership during that fiscal year, determined according
to the provisions of Treasury Regulations Section 1.704-2(c).


 


“Original Agreement” has the meaning
set forth in the preamble of this Agreement.


 


 “Partner
Nonrecourse Debt Minimum Gain” means an amount with respect to each partner
nonrecourse debt (as defined in Treasury Regulations Section 1.704-2(b)(4))
equal to the Partnership Minimum Gain that would result if such partner
nonrecourse debt were treated as a nonrecourse liability (as defined in
Treasury Regulations Section 1.752-1(a)(2)) determined in accordance with
Treasury Regulations Section 1.704-2(i)(3).


 


“Partner Nonrecourse Deductions” has
the meaning ascribed to the term “partner nonrecourse deductions” set forth in
Treasury Regulations Section 1.704-2(i)(2).


 


“Partners” means, at any time, each
person listed as a Partner (including the General Partners) on the books and
records of the Partnership, in each case for so long as he, she or it remains a
partner of the Partnership as provided hereunder.


 


“Partnership” has the meaning set
forth in the preamble of this Agreement.


 


“Partnership Minimum Gain” has the
meaning set forth in Treasury Regulations Sections 1.704-2(b)(2) and
1.704-2(d).


 


 “Percentage
Interest” means, with respect to any Partner, the quotient obtained by
dividing the number of Units then owned by such Partner by the number of Units
then owned by all Partners.


 


“Person” or “person” means any
individual, corporation, partnership, limited partnership, limited liability
company, limited company, joint venture, trust, entity, unincorporated or
governmental organization or any agency or political subdivision thereof.


 


“Profits” and “Losses” means,
for each Fiscal Year or other period, the taxable income or loss of the
Partnership, or particular items thereof, determined in accordance with the
accounting method used by the Partnership for U.S. federal income tax purposes
with the following adjustments: (a) all items of income, gain, loss or
deduction allocated pursuant to Section 5.05 shall not be taken into
account in computing such taxable income or loss but shall be computed in
accordance with the principles of this definition; (b) any income of the
Partnership that is exempt from U.S. federal income taxation and not otherwise
taken into account in computing Profits and Losses shall be added to such
taxable income or loss; (c) if the Carrying Value of any asset differs
from its adjusted tax basis for U.S. federal income tax purposes, any gain or
loss resulting from a disposition of such asset shall be calculated with
reference to such Carrying Value; (d) upon an adjustment to the Carrying
Value (other than an adjustment in respect of depreciation) of any asset,
pursuant to the definition of Carrying Value, the amount of the adjustment
shall be included as gain or loss in computing such taxable income or loss; (e) if
the Carrying Value of any asset differs from its adjusted tax basis for U.S.
federal income tax purposes, the amount of depreciation, amortization or cost
recovery deductions with respect to such asset for 


 


6

















 


purposes of determining Profits and Losses, if any, shall be an amount
which bears the same ratio to such Carrying Value as the U.S. federal income
tax depreciation, amortization or other cost recovery deductions bears to such
adjusted tax basis (provided that if the U.S. federal income tax
depreciation, amortization or other cost recovery deduction is zero, the
General Partners may use any reasonable method for purposes of determining
depreciation, amortization or other cost recovery deductions in calculating
Profits and Losses); and (f) except for items in (a) above, any
expenditures of the Partnership not deductible in computing taxable income or
loss, not properly capitalizable and not otherwise taken into account in
computing Profits and Losses pursuant to this definition shall be treated as
deductible items.


 


“Purchase and Sale Agreement” means
the purchase and sale agreement between the Partnership, KPE and the other
parties thereto, dated July 27, 2008


 


“Securities Act” means the U.S.
Securities Act of 1933, as amended, including the rules and regulations
promulgated thereunder.


 


“Similar Law” means any law or
regulation that could cause the underlying assets of the Partnership to be
treated as assets of the Limited Partner by virtue of its limited partner
interest in the Partnership and thereby subject the Partnership and the General
Partners (or other persons responsible for the investment and operation of the
Partnership’s assets) to Laws that are similar to the fiduciary responsibility
or prohibited transaction provisions contained in Title I of ERISA or Section 4975
of the Code.


 


“Special Allocations” means any
allocations to Partners pursuant to Section 5.05.


 


“Statement” has the meaning set forth
in the preamble of this Agreement.


 


“Tax Advances” has the meaning set
forth in Section 5.07.


 


“Tax Amount” has the meaning set forth
in Section 4.01(b)(i).


 


“Tax Distributions” has the meaning
set forth in Section 4.01(b)(i).


 


“Tax Matters Partner” has the meaning
set forth in Section 5.08.


 


“Transfer” means, in respect of any
Unit, property or other asset, any sale, assignment, transfer, distribution or
other disposition thereof, whether voluntarily or by operation of Law,
including, without limitation, the exchange of any Unit for any other security.


 


“Transferee” means any Person that is
a transferee of a Partner’s interest in the Partnership, or part thereof.


 


“Treasury Regulations” means the
income tax regulations, including temporary regulations, promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).


 


7

















 


“Units” means the Class A Units
and any other Class of Units authorized in accordance with this Agreement,
which shall constitute interests in the Partnership as provided in this
Agreement and under the Act, entitling the holders thereof to the relative
rights, title and interests in the profits, losses, deductions and credits of
the Partnership at any particular time as set forth in this Agreement, and any
and all other benefits to which a holder thereof may be entitled as a Partner
as provided in this Agreement, together with the obligations of such Partner to
comply with all terms and provisions of this Agreement.


 


ARTICLE II


 


FORMATION, TERM, PURPOSE AND POWERS


 


SECTION 2.01.             Formation.  The Partnership was formed and registered as
an exempted limited partnership under the provisions of the Act by the filing
on July 23, 2008 of the Statement as provided in the preamble of this
Agreement and the execution of the Original Agreement. If requested by a
General Partner, the Limited Partners shall promptly execute all certificates
and other documents consistent with the terms of this Agreement necessary for a
General Partner to accomplish all filing, recording, publishing and other acts
as may be appropriate to comply with all requirements for (a) the
formation and operation of an exempted limited partnership under the laws of the
Cayman Islands, (b) if a General Partner deems it advisable, the operation
of the Partnership as a limited partnership, or partnership in which the
Limited Partners have limited liability, in all jurisdictions where the
Partnership proposes to operate and (c) all other filings required to be
made by the Partnership.


 


SECTION 2.02.             Name. The name of the
Partnership shall be, and the business of the Partnership shall be conducted
under the name of, KKR Fund Holdings L.P.


 


SECTION 2.03.             Term. The term of the
Partnership commenced on the execution of the Original Agreement, and the term
shall continue until the dissolution of the Partnership in accordance with Article VIII.
The existence of the Partnership shall continue until a notice of dissolution
signed by a General Partner has been filed with the Cayman Islands Registrar of
Exempted Limited Partnerships.


 


SECTION 2.04.             Offices.  The Partnership may have offices at such
places either within or outside the Cayman Islands as a General Partner from
time to time may select.


 


SECTION 2.05.             Registered Office. To the
extent required by the Act, the Partnership will continuously maintain a
registered office at the offices of Maples Corporate Services Limited, Ugland
House, PO Box 309, George Town, Grand Cayman KY1-1104, Cayman Islands or at
such other place within the Cayman Islands as a General Partner from time to
time may select.


 


SECTION 2.06.             Business Purpose. The
Partnership was formed for the object and purpose of, and the nature and
character of the business to be conducted by the Partnership is, engaging in
any lawful act or activity to be carried out and undertaken either in or from
within the Cayman Islands or elsewhere, including holding limited and general
partner interests in other


 


8

















 


limited partnerships, upon the terms, with the rights and powers, and
subject to the conditions, limitations, restrictions and liabilities set forth
herein.


 


SECTION 2.07.             Powers of the Partnership.
Subject to the limitations set forth in this Agreement, the Partnership will
possess and may exercise all of the powers and privileges granted to it by the
Act including, without limitation, the ownership and operation of the assets
contributed to the Partnership by the Partners, by any other Law or this
Agreement, together with all powers incidental thereto, so far as such powers
are necessary or convenient to the conduct, promotion or attainment of the
purpose of the Partnership set forth in Section 2.06.


 


SECTION 2.08.             Partners; Admission of New and
Substitute Limited Partners.  Each of
the Persons listed as Partners in the books and records of the Partnership, as
the same may be amended from time to time in accordance with this Agreement, by
virtue of the execution of this Agreement, are admitted as Partners of the
Partnership. The rights, duties and liabilities of the Partners shall be as
provided in the Act, except as is otherwise expressly provided herein, and the
Partners consent to the variation of such rights, duties and liabilities as
provided herein. A Person may be admitted from time to time as a new Limited
Partner with the approval of the General Partners, as a substitute Limited
Partner in accordance with Section 7.09 or as an additional General
Partner or substitute General Partner in accordance with Section 7.08; provided,
however, that (i) each new and substitute Limited Partner shall execute
and deliver to the General Partners a supplement to this Agreement in the form
of Annex A hereto (or in such other form as the General Partners may
reasonably require) and (ii) each additional General Partner or substitute
General Partner, as the case may be, shall execute and deliver to the General
Partners an appropriate supplement to this Agreement, in each case pursuant to
which the new Partner agrees to be bound by the terms and conditions of the
Agreement, as it may be amended from time to time.


 


SECTION 2.09.             Withdrawal.  Except as provided in Section 2.10, no
Partner shall have the right to withdraw as a Partner of the Partnership other
than following the Transfer of all Units owned by such Partner in accordance
with Article VII.


 


SECTION 2.10.             Initial Limited Partner.  The execution of this Agreement by the
Initial Limited Partner constitutes his withdrawal as a limited partner of the
Partnership with the consent of the General Partners.  Because of such withdrawal, the Initial
Limited Partner has no further right, interest or obligation of any kind
whatsoever as a limited partner of the Partnership, effective immediately after
the admission of any other Person as a Limited Partner.  Any capital contribution of the Initial
Limited Partner will be returned to him on the date of his withdrawal.


 


ARTICLE III


 


MANAGEMENT


 


SECTION 3.01.             General Partners. (a) 
The business, property and affairs of the Partnership shall be managed under
the sole, absolute and exclusive direction of the General Partners, which may
from time to time delegate authority to officers or to others to act on behalf
of the Partnership.


 


9

















 


(b)   Without limiting the
foregoing provisions of this Section 3.01, each General Partner shall have
the general power to manage or cause the management of the Partnership (which
may be delegated to officers of the Partnership), including, without
limitation, the following powers:


 


(i)           to
develop and prepare a business plan each year which will set forth the
operating goals and plans for the Partnership;


 


(ii)         to
execute and deliver or to authorize the execution and delivery of contracts,
deeds, leases, licenses, instruments of transfer and other documents on behalf
of the Partnership;


 


(iii)         the
making of any expenditures, the lending or borrowing of money, the assumption
or guarantee of, or other contracting for, indebtedness and other liabilities,
the issuance of evidences of indebtedness and the incurring of any other
obligations;


 


(iv)         to
employ, retain, consult with and dismiss personnel;


 


(v)          to
establish and enforce limits of authority and internal controls with respect to
all personnel and functions;


 


(vi)         to
engage attorneys, consultants and accountants for the Partnership;


 


(vii)        to
develop or cause to be developed accounting procedures for the maintenance of
the Partnership’s books of account; and


 


(viii)       to
do all such other acts as shall be authorized in this Agreement or by the
Partners in writing from time to time.


 


SECTION 3.02.             Compensation.  The General Partners shall not be entitled to
any compensation for services rendered to the Partnership in their capacity as
General Partners.


 


SECTION 3.03.             Expenses.  The Partnership shall bear and reimburse the
General Partners for any expenses incurred by the General Partners in
connection with serving as the general partners of the Partnership.


 


SECTION 3.04.             Officers.  Subject to the direction and oversight of the
General Partners, the day-to-day administration of the business of the
Partnership may be carried out by natural persons who may be designated as
officers by a General Partner, with titles including but not limited to “Chief
Executive Officer” or “Co-Chief Executive Officer,” “Chief Operating Officer,” “Chief
Financial Officer,” “General Counsel,” “Chief Administrative Officer,” “Chief
Compliance Officer,” “Principal Accounting Officer,” “President,” “Vice President,”
“Treasurer,” “Assistant Treasurer,” “Secretary,” “Assistant Secretary,” “General
Manager,” “Senior Managing Director,” “Managing Director,” “Director” and “Principal”
as and to the extent authorized by a General Partner.  The officers of the Partnership shall have
such titles and powers and perform such duties as shall be determined from time
to time by a General Partner and otherwise as shall


 


10

















 


customarily pertain to such offices. 
Any number of offices may be held by the same person.  All officers shall be subject to the
supervision and direction of the General Partners and may be removed from such
office by a General Partner and the authority, duties or responsibilities of
any officer of the Partnership may be suspended by a General Partner from time
to time, in each case in the sole discretion of a General Partner.  Neither General Partner shall cease to be a
general partner of the Partnership as a result of the delegation of any duties
hereunder.  No officer of the
Partnership, in its capacity as such, shall be considered a general partner of
the Partnership by agreement, estoppel, as a result of the performance of its
duties hereunder or otherwise.


 


SECTION 3.05.             Authority of Partners.  No Limited Partner, in its capacity as such,
shall participate in the conduct of the business of the Partnership or have any
control over the business of the Partnership. Except as expressly provided
herein, the Units do not confer any rights upon the Limited Partners to
participate in the affairs of the Partnership described in this Agreement.
Except as expressly provided herein, the Limited Partners shall have no right
to vote on any matter involving the Partnership, including with respect to any
merger, consolidation, combination or conversion of the Partnership. The
conduct, control and management of the Partnership shall be vested exclusively
in the General Partners. In all matters relating to or arising out of the
conduct of the operation of the Partnership, the decision of a General Partner
shall be the decision of the Partnership. Except as required or permitted by
Law, or expressly provided in the ultimate sentence of this Section 3.05
or by separate agreement with the Partnership, no Partner who is not also a General
Partner (and acting in such capacity) shall take any part in the management,
conduct or control of the operation or business of the Partnership in its
capacity as a Partner, nor shall any Partner who is not also a General Partner
(and acting in such capacity) have any right, authority or power to act for or
on behalf of or bind the Partnership in his or its capacity as a Partner in any
respect or assume any obligation or responsibility of the Partnership or of any
other Partner. Notwithstanding the foregoing, the Partnership may employ one or
more Partners from time to time, and such Partners, in their capacity as
employees, officers or agents of the Partnership (and not, for clarity, in
their capacity as Limited Partners of the Partnership), may take part in the
control, conduct and management of the business of the Partnership to the
extent such authority and power to act for or on behalf of the Partnership has
been delegated to them by a General Partner.


 


SECTION 3.06.             Action by Written Consent or Ratification.  Any action required or permitted to be taken
by the Partners pursuant to this Agreement shall be taken if all Partners whose
consent or ratification is required consent thereto or provide a ratification
in writing.


 


ARTICLE IV


 


DISTRIBUTIONS


 


SECTION 4.01.             Distributions.  (a) A General Partner, in its sole
discretion, may authorize distributions by the Partnership to the Partners,
which distributions shall be made pro rata
in accordance with the Partners’ respective Percentage Interests.


 


(b)(i)   If a General Partner
reasonably determines that the Partnership has taxable income for a Fiscal Year
(“Net Taxable Income”), such General Partner shall cause the Partnership



 


11

















 


to distribute Available Cash, to the extent that other
distributions made by the Partnership for such year were otherwise
insufficient, in an amount equal to such General Partner’s estimate of the
allocable Net Taxable Income in accordance with Article V,
multiplied by the Assumed Tax Rate (the “Tax Amount”) to cover such tax
liabilities (the “Tax Distributions”). 
For purposes of computing the Tax Amount, the effect of any benefit
under Section 743(b) of the Code will be ignored. Tax Distributions
shall be made pro rata in accordance
with the Partners’ respective Percentage Interests.


 


(ii)   Tax Distributions shall be calculated and paid no
later than one day prior to each quarterly due date for the payment by
corporations on a calendar year of estimated taxes under the Code in the
following manner (A) for the first quarterly period, 25% of the Tax
Amount, (B) for the second quarterly period, 50% of the Tax Amount, less
the prior Tax Distributions for the Fiscal Year, (C) for the third
quarterly period, 75% of the Tax Amount, less the prior Tax Distributions for
the Fiscal Year and (D) for the fourth quarterly period, 100% of the Tax
Amount, less the prior Tax Distributions for the Fiscal Year. Following each
Fiscal Year, and no later than one day prior to the due date for the payment by
corporations of income taxes for such Fiscal Year, a General Partner shall make
an amended calculation of the Tax Amount for such Fiscal Year (the “Amended
Tax Amount”), and shall cause the Partnership to distribute a Tax
Distribution, out of Available Cash, to the extent that the Amended Tax
Amount so calculated exceeds the cumulative Tax Distributions previously made
by the Partnership in respect of such Fiscal Year. If the Amended Tax Amount is
less than the cumulative Tax Distributions previously made by the Partnership
in respect of the relevant Fiscal Year, then the difference (the “Credit
Amount”) shall be applied against, and shall reduce, the amount of Tax
Distributions made for subsequent Fiscal Years.   Within 30 days following the date on which
the Partnership files a U.S. tax return on Form 1065, a General Partner
shall make a final calculation of the Tax Amount of such Fiscal Year (the “Final
Tax Amount”) and shall cause the Partnership to distribute a Tax
Distribution, out of Available Cash, to the extent that the Final Tax
Amount so calculated exceeds the Amended Tax Amount. If the Final Tax Amount is
less than the Amended Tax Amount in respect of the relevant Fiscal Year, then
the difference (“Additional Credit Amount”) shall be applied against,
and shall reduce, the amount of Tax Distributions made for subsequent Fiscal
Years.  Any Credit Amount and Additional
Credit Amount applied against future Tax Distributions shall be treated as an
amount actually distributed pursuant to this Section 4.01(b) for
purposes of the computations herein.


 


SECTION 4.02.             Liquidation Distribution.  Distributions made upon dissolution of the
Partnership shall be made as provided in Section 8.03.


 


SECTION 4.03.             Limitations on Distribution.  Notwithstanding any provision to the contrary
contained in this Agreement, neither General Partner shall make a Partnership
distribution to any Partner if such distribution would violate Section 14
of the Act or other applicable Law.


 


12














 


ARTICLE V


 


CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS;

TAX ALLOCATIONS; TAX MATTERS


 


SECTION 5.01.          Initial Capital Contributions.  (a) The Partners have made, on or prior
to the date hereof, Capital Contributions and, in exchange, the Partnership has
issued to the Partners the number of Class A Units as specified in the
books and records of the Partnership.


 


(b)   Upon the CVI Termination, as an adjustment to the
consideration received in exchange for the Capital Contributions, (i) if
Common Units are to be issued to holders of the CVIs in accordance with the
terms of the CVI Agreement, the Partnership shall issue to the Issuer a number
of Class A Units equal to the number of Common Units to be issued under
the CVI Agreement, and the Partnership shall cancel an equal number of the Class A
Units held by KKR Intermediate Partnership(2) at such time (adjusting the
number of units issued as provided for under the CVI Agreement) or (ii) if
KKR Intermediate Partnership contributes cash to the Partnership equal to the
cash consideration deliverable by the Issuer to holders of CVIs pursuant to the
CVI Agreement multiplied by the Contributing Sharing Percentage, no Class A
Units shall be issued or cancelled and the Partnership shall distribute such
cash to the Issuer.


 


(c)   Prior to the date that is 10 days before the
applicable Averaging Period (as defined in the CVI Agreement), KKR Intermediate
Partnership shall give notice to the Partnership and the Issuer if it intends
to contribute cash to the Partnership in an amount set forth in Section 5.01(b)(ii) above.  Under no circumstances shall the Partnership
make any commitment to the Issuer to deliver cash under the CVI Agreement
unless and until it has received such notice from KKR Intermediate Partnership
stating that it intends to contribute cash to the Partnership in the amount set
forth in Section 5.01(b)(ii) above. 
After delivery of such notice, KKR Intermediate Partnership shall make
such cash contribution to the Partnership (and the Partnership shall effect the
series of distributions of such cash to the Issuer) on or before the applicable
date on which such payment is due under the CVI Agreement.


 


(d)   The Issuer shall be entitled to enforce the
provisions of this Section 5.01 against the parties hereto.


 


SECTION 5.02.          No Additional Capital Contributions.  Except as otherwise provided in this Article V,
no Partner shall be required to make additional Capital Contributions to the
Partnership without the consent of such Partner or permitted to make additional
capital contributions to the Partnership without the consent of a General
Partner.


 


SECTION 5.03.          Capital Accounts.  (a) A separate capital account (a “Capital
Account”) shall be established and maintained for each Partner in
accordance with the provisions of Treasury 


 






(2) To the extent it is ultimately determined that KKR
Intermediate Partnership will not be the holder of the KKR Holdings indirect
interest in the Partnership, the provisions of this Section 5.01 will be
modified to reflect the appropriate entity.


 


13

















 


Regulations Section 1.704-1(b)(2)(iv).  To the extent consistent with such Treasury
Regulations, the Capital Account of each Partner shall be credited with such
Partner’s Capital Contributions, if any, all Profits allocated to such Partner
pursuant to Section 5.04 and any items of income or gain which are
specially allocated pursuant to Section 5.05; and shall be debited with
all Losses allocated to such Partner pursuant to Section 5.04, any items
of loss or deduction of the Partnership specially allocated to such Partner
pursuant to Section 5.05, and all cash and the Carrying Value of any
property (net of liabilities assumed by such Partner and the liabilities to
which such property is subject) distributed by the Partnership to such
Partner.  Any references in any section
of this Agreement to the Capital Account of a Partner shall be deemed to refer
to such Capital Account as the same may be credited or debited from time to
time as set forth above.  In the event of
any transfer of any interest in the Partnership in accordance with the terms of
this Agreement, the Transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the transferred interest.


 


(b)   Adjustments.  To the extent there is an adjustment made
pursuant to Section 5.01(b), an appropriate adjustment will be made to the
Capital Account of each Partner and the Carrying Value of any Partnership
assets.


 


SECTION 5.04.          Allocations of Profits and Losses.  Except as otherwise provided in this
Agreement, Profits and Losses (and, to the extent necessary, individual items
of income, gain or loss or deduction of the Partnership) shall be allocated in
a manner such that the Capital Account of each Partner after giving effect to
the Special Allocations set forth in Section 5.05 is, as nearly as
possible, equal (proportionately) to (i) the distributions that would be
made pursuant to Article IV if the Partnership were dissolved, its affairs
wound up and its assets sold for cash equal to their Carrying Value, all
Partnership liabilities were satisfied (limited with respect to each
non-recourse liability to the Carrying Value of the assets securing such
liability) and the net assets of the Partnership were distributed to the
Partners pursuant to this Agreement, minus (ii) such Partner’s
share of Partnership Minimum Gain and Partner Nonrecourse Debt Minimum Gain,
computed immediately prior to the hypothetical sale of assets. Notwithstanding
the foregoing, a General Partner shall make such adjustments to Capital
Accounts as it determines in its sole discretion to be appropriate to ensure
allocations are made in accordance with a Partner’s interest in the
Partnership.


 


SECTION 5.05.          Special Allocations.  Notwithstanding any other provision in this Article V:


 


(a)   Minimum Gain
Chargeback.  If there is a net
decrease in Partnership Minimum Gain or Partner Nonrecourse Debt Minimum Gain
(determined in accordance with the principles of Treasury Regulations Sections
1.704-2(d) and 1.704-2(i)) during any Partnership taxable year, the
Partners shall be specially allocated items of Partnership income and gain for
such year (and, if necessary, subsequent years) in an amount equal to their
respective shares of such net decrease during such year, determined pursuant to
Treasury Regulations Sections 1.704-2(g) and 1.704-2(i)(5).  The items to be so allocated shall be
determined in accordance with Treasury Regulations Section 1.704-2(f).  This Section 5.05(a) is intended to
comply with the minimum gain chargeback requirements in such Treasury
Regulations Sections and shall be interpreted consistently therewith; including
that no chargeback shall be required to the extent of the exceptions provided
in Treasury Regulations Sections 1.704-2(f) and 1.704-2(i)(4).


 


14

















 


(b)   Qualified Income Offset.  If any Partner unexpectedly receives any
adjustments, allocations, or distributions described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4),
(5) or (6), items of Partnership income and gain shall be specially
allocated to such Partner in an amount and manner sufficient to eliminate the
deficit balance in such Partner’s Adjusted Capital Account Balance created by
such adjustments, allocations or distributions as promptly as possible;  provided that an allocation
pursuant to this Section 5.05(b) shall be made only to the extent
that a Partner would have a deficit Adjusted Capital Account Balance in excess
of such sum after all other allocations provided for in this Article V
have been tentatively made as if this Section 5.05(b) were not in
this Agreement.  This Section 5.05(b) is
intended to comply with the “qualified income offset” requirement of the Code
and shall be interpreted consistently therewith.


 


(c)   Gross Income Allocation.  If any Partner has a deficit Capital Account
at the end of any Fiscal Year which is in excess of the sum of (i) the
amount such Partner is obligated to restore, if any, pursuant to any provision
of this Agreement, and (ii) the amount such Partner is deemed to be
obligated to restore pursuant to the penultimate sentences of Treasury
Regulations Section 1.704-2(g)(1) and 1.704-2(i)(5), each such
Partner shall be specially allocated items of Partnership income and gain in the
amount of such excess as quickly as possible; provided that an
allocation pursuant to this Section 5.05(c) shall be made only if and
to the extent that a Partner would have a deficit Capital Account in excess of
such sum after all other allocations provided for in this Article V have
been tentatively made as if Section 5.05(b) and this Section 5.05(c) were
not in this Agreement.


 


(d)   Nonrecourse Deductions.  Nonrecourse Deductions shall be allocated to
the Partners in accordance with their respective Percentage Interests.


 


(e)   Partner Nonrecourse Deductions.  Partner Nonrecourse Deductions for any
taxable period shall be allocated to the Partner who bears the economic risk of
loss with respect to the liability to which such Partner Nonrecourse Deductions
are attributable in accordance with Treasury Regulations Section 1.704-2(j).


 


(f)   Creditable Non-U.S. Taxes.  Creditable Non-U.S. Taxes for any taxable
period attributable to the Partnership, or an entity owned directly or
indirectly by the Partnership, shall be allocated to the Partners in proportion
to the partners’ distributive shares of income (including income allocated
pursuant to Section 704(c) of the Code) to which the Creditable
Non-U.S. Tax relates (under principles of Treasury Regulations Section 1.904-6).  The provisions of this Section 5.05(f) are
intended to comply with the provisions of Treasury Regulations Section 1.704-1
(b)(4)(viii), and shall be interpreted consistently therewith.


 


(g)   Ameliorative Allocations. Any special
allocations of income or gain pursuant to Sections 5.05(b) or 5.05(c) shall
be taken into account in computing subsequent allocations pursuant to Section 5.04
and this Section 5.05(g), so that the net amount of any items so allocated
and all other items allocated to each Partner shall, to the extent possible, be
equal to the net amount that would have been allocated to each Partner if such
allocations pursuant to Sections 5.05(b) or 5.05(c) had not occurred.


 


SECTION 5.06.          Tax Allocations.  For income tax purposes, each item of income,
gain, loss and deduction of the Partnership shall be allocated among the
Partners in the 


 


15

















 


same manner as the corresponding items of Profits and Losses and
specially allocated items are allocated for Capital Account purposes; provided
that in the case of any asset the Carrying Value of which differs from its
adjusted tax basis for U.S. federal income tax purposes, income, gain, loss and
deduction with respect to such asset shall be allocated solely for income tax
purposes in accordance with the principles of Section 704(c)(1)(A) of
the Code (using the traditional method as set forth in Treasury Regulation
1.704-3(b), unless otherwise agreed to by the Limited Partners) so as to take
account of the difference between Carrying Value and adjusted basis of such
asset.  Notwithstanding the foregoing, a
General Partner may make such allocations as it deems reasonably necessary to
ensure allocations are made in accordance with a Partner’s interest in the
Partnership, taking into account such facts and circumstances as it deems
reasonably necessary for this purpose.


 


SECTION 5.07.          Tax Advances.  To the extent a General Partner reasonably
believes that the Partnership is required by Law to withhold or to make tax
payments on behalf of or with respect to any Partner or the Partnership is
subjected to tax itself by reason of the status of any Partner (“Tax
Advances”), such General Partner may withhold such amounts and make such
tax payments as so required.  All Tax
Advances made on behalf of a Partner shall be repaid by reducing the amount of
the current or next succeeding distribution or distributions which would
otherwise have been made to such Partner or, if such distributions are not
sufficient for that purpose, by so reducing the proceeds of liquidation
otherwise payable to such Partner.  For
all purposes of this Agreement such Partner shall be treated as having received
the amount of the distribution that is equal to the Tax Advance.  Each Partner hereby agrees to indemnify and
hold harmless the Partnership and the other Partners from and against any
liability (including, without limitation, any liability for taxes, penalties,
additions to tax or interest) imposed as a result of the Partnership’s failure
to withhold or make a tax payment on behalf of such Partner, which withholding
or payment is required pursuant to applicable Law.


 


SECTION 5.08.          Tax Matters.  The Issuer shall be the initial “tax matters
partner” within the meaning of Section 6231(a)(7) of the Code (the “Tax
Matters Partner”). The Partnership shall file as a partnership for federal,
state, provincial and local income tax purposes, except where otherwise
required by Law. All elections required or permitted to be made by the
Partnership, and all other tax decisions and determinations relating to
federal, state, provincial or local tax matters of the Partnership, shall be
made by the Tax Matters Partner, in consultation with the Partnership’s
attorneys and/or accountants. Tax audits, controversies and litigations shall
be conducted under the direction of the Tax Matters Partner. The Tax Matters
Partner shall keep the other Partners reasonably informed as to any tax
actions, examinations or proceedings relating to the Partnership and shall
submit to the other Partners, for their review and comment, any settlement or
compromise offer with respect to any disputed item of income, gain, loss,
deduction or credit of the Partnership. As soon as reasonably practicable after
the end of each Fiscal Year, the Partnership shall send to each Partner a copy
of U.S. Internal Revenue Service Schedule K-1, and any comparable statements
required by applicable U.S. state or local income tax Law as a result of the
Partnership’s activities or investments, with respect to such Fiscal Year. The
Partnership also shall provide the Partners with such other information as may
be reasonably requested for purposes of allowing the Partners to prepare and
file their own tax returns.


 


SECTION 5.09.          Other Tax Provisions.  Certain of the foregoing provisions and the
other provisions of this Agreement relating to the maintenance of Capital
Accounts are 


 


16

















 


intended to
comply with Treasury Regulations Section 1.704-1(b) and shall be
interpreted and applied in a manner consistent with such regulations.  Sections 5.03, 5.04 and 5.05 may be amended
at any time by a General Partner if necessary, in the opinion of qualified tax
advisor to the Partnership, to comply with such regulations or any other
applicable Law, so long as any such amendment does not materially change the
relative economic interests of the Partners. Any distribution of cash to the
Issuer pursuant to Section 5.01(c) shall be treated as having been
made in respect of preformation capital expenditures of the Partnership
pursuant to Treasury Regulations Section 1.707-4(d) to the extent of
any such expenditure.


 


ARTICLE VI


 


BOOKS AND RECORDS; REPORTS


 


SECTION 6.01.          Books and Records.  (a) At all times during the continuance
of the Partnership, the Partnership shall prepare and maintain separate books
of account for the Partnership in accordance with GAAP.


 


(b)   Except as limited by Section 6.01(c),
each Limited Partner shall have the right to receive, for a purpose reasonably
related to such Limited Partner’s interest as a Limited Partner in the
Partnership, upon reasonable written demand stating the purpose of such demand
and at such Limited Partner’s own expense:


 


(i)   a copy of the Statement
and this Agreement and all amendments thereto, together with a copy of the
executed copies of all powers of attorney pursuant to which the Statement and
this Agreement and all amendments thereto have been executed; and


 


(ii)   promptly after their
becoming available, copies of the Partnership’s U.S. federal, state and local
income tax returns and reports, if any, for the three most recent years.


 


(c)   The General Partners may
keep confidential from the Limited Partners, for such period of time as the
General Partners determine in their sole discretion, (i) any information
that the General Partners reasonably believe to be in the nature of trade
secrets or (ii) other information the disclosure of which the General
Partners believe is not in the best interests of the Partnership, could damage
the Partnership or its business or that the Partnership is required by Law or
by agreement with any third party to keep confidential.


 


ARTICLE VII


 


PARTNERSHIP UNITS


 


SECTION 7.01.          Units.  Interests in the Partnership shall be
represented by Units.  The Units
initially are comprised of one Class: Class A Units.  The General Partners may establish, from time
to time in accordance with such procedures as the General Partners shall
determine from time to time, other Classes, one or more series of any such
Classes, or other Partnership securities with such designations, preferences,
rights, powers and duties (which may be senior to existing Classes and series
of Units or other Partnership securities), as shall be determined by the
General Partners, including (i) the right to share in Profits and Losses
or items thereof; (ii) 


 


17

















 


the right to
share in Partnership distributions; (iii) the rights upon dissolution and
liquidation of the Partnership; (iv) whether, and the terms and conditions
upon which, the Partnership may or shall be required to redeem the Units or
other Partnership securities (including sinking fund provisions); (v) whether
such Unit or other Partnership security is issued with the privilege of
conversion or exchange and, if so, the terms and conditions of such conversion
or exchange; (vi) the terms and conditions upon which each Unit or other
Partnership security will be issued, evidenced by certificates and assigned or
transferred; (vii) the method for determining the Percentage Interest as
to such Units or other Partnership securities; and (viii) the right, if
any, of the holder of each such Unit or other Partnership security to vote on
Partnership matters, including matters relating to the relative designations,
preferences, rights, powers and duties of such Units or other Partnership
securities. Except as expressly provided in this Agreement to the contrary, any
reference to “Units” shall include the Class A Units and any other Classes
that may be established in accordance with this Agreement.  All Units of a particular Class shall
have identical rights in all respects as all other Units of such Class, except
in each case as otherwise specified in this Agreement.


 


SECTION 7.02.          Register.  To the extent required by the Act, the
Partnership will maintain at its registered office a register of limited
partner interests that will include the name and address of each Limited
Partner and such other information required by the Act. The register of the
Partnership shall be the definitive record of ownership of each Unit and all
relevant information with respect to each Partner.  Unless a General Partner shall determine
otherwise, Units shall be uncertificated and recorded in the books and records
of the Partnership.


 


SECTION 7.03.          Registered Partners.  The Partnership shall be entitled to
recognize the exclusive right of a Person registered on its records as the
owner of Units for all purposes and shall not be bound to recognize any
equitable or other claim to or interest in Units on the part of any other
Person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the Act or other applicable Law.


 


SECTION 7.04.          Exchange Transactions.  Each Limited Partner may exchange all or a
portion of the Units owned by such Limited Partner for Common Units pursuant
to, and in accordance with, the Exchange Agreement.


 


SECTION 7.05.          Transfers; Encumbrances.


 


(a)   No Limited Partner or
Assignee may Transfer all or any portion of its Units (or any beneficial
interest therein) unless a General Partner consents in writing thereto, which
consent may be given or withheld, or made subject to such conditions as are
determined by such General Partner, in such General Partner’s sole discretion.
Any purported Transfer that is not in accordance with this Agreement shall be,
to the fullest extent permitted by Law, null and void.


 


(b)   No Limited Partner or
Assignee may create an Encumbrance with respect to all or any portion of its
Units (or any beneficial interest therein) other than Encumbrances that run in
favor of the Limited Partner unless a General Partner consents in writing
thereto, which consent may be given or withheld, or made subject to such
conditions as are determined by such General Partner, in such General Partner’s
sole discretion.  Consent of a General
Partner shall be withheld until the holder of the Encumbrance acknowledges the 


 


18

















 


terms and conditions of this Agreement. 
Any purported Encumbrance that is not in accordance with this Agreement
shall be, to the fullest extent permitted by Law, null and void.


 


SECTION 7.06.          Further Restrictions.  Notwithstanding any contrary provision in
this Agreement, in no event may any Transfer of a Unit be made by any Limited
Partner or Assignee if:


 


(a)   such Transfer is made to
any Person who lacks the legal right, power or capacity to own such Unit;


 


(b)   such Transfer would
require the registration of such transferred Unit or of any Class of Unit
pursuant to any applicable U.S. federal or state securities laws (including,
without limitation, the Securities Act or the Exchange Act) or other non-U.S
securities laws or would constitute a non-exempt distribution pursuant to
applicable provincial or state securities laws;


 


(c)   such Transfer would
cause the Partnership to become a publicly traded partnership taxable as a
corporation for U.S. federal tax law purposes;


 


(d)   such Transfer would
cause (i) all or any portion of the assets of the Partnership to (A) constitute
“plan assets” (under ERISA, the Code or any applicable Similar Law) of any
existing or contemplated Limited Partner, or (B) be subject to the
provisions of ERISA, Section 4975 of the Code or any applicable Similar
Law, or (ii) a General Partner to become a fiduciary with respect to any
existing or contemplated Limited Partner, pursuant to ERISA, any applicable
Similar Law, or otherwise;


 


(e)   to the extent requested
by a General Partner, the Partnership does not receive such legal or tax
opinions and written instruments (including, without limitation, copies of any
instruments of Transfer and such Assignee’s consent to be bound by this
Agreement as an Assignee) that are in a form satisfactory to such General
Partner, as determined in such General Partner’s sole discretion.


 


SECTION 7.07.          Rights of Assignees.  Subject to Section 7.09, the Transferee
of any permitted Transfer pursuant to this Article VII will be an assignee
only (“Assignee”), and only will receive, to the extent transferred, the
distributions and allocations of income, gain, loss, deduction, credit or
similar item to which the Partner which transferred its Units would be
entitled, and such Assignee will not be entitled or enabled to exercise any
other rights or powers of a Partner, such other rights, and all obligations
relating to, or in connection with, such Interest remaining with the
transferring Partner.  The transferring
Partner will remain a Partner even if it has transferred all of its Units to
one or more Assignees until such time as the Assignee(s) is admitted to
the Partnership as a Partner pursuant to Section 7.09.


 


SECTION 7.08.         Admissions, Withdrawals and Removals.
(a) A General Partner may not be removed.


 


(b)   No Person may be
admitted to the Partnership as an additional General Partner or substitute
General Partner without the prior written consent or ratification of Partners
whose 


 


19

















 


Percentage Interests exceed 50% of the Percentage Interests of all
Partners in the aggregate. A General Partner will not be entitled to Transfer
all of its Units or to withdraw from being a General Partner of the Partnership
unless another General Partner shall have been admitted hereunder (and not have
previously been removed or withdrawn).


 


(c)   No Limited Partner will be removed or entitled to
withdraw from being a Partner of the Partnership except in accordance with Section 7.10.


 


(d)   Except as otherwise provided in Article VIII
or the Act, no admission, substitution, withdrawal or removal of a Partner will
cause the dissolution of the Partnership. 
To the fullest extent permitted by law, any purported admission,
withdrawal or removal that is not in accordance with this Agreement shall be
null and void.


 


SECTION 7.09.          Admission of Assignees as
Substitute Limited Partners.  An
Assignee will become a substitute Limited Partner only if and when each of the
following conditions is satisfied:


 


(a)   a General Partner
consents in writing to such admission, which consent may be given or withheld,
or made subject to such conditions as are determined by such General Partner,
in each case in such General Partner’s sole discretion;


 


(b)   if required by a General
Partner, such General Partner receives written instruments (including, without
limitation, copies of any instruments of Transfer and such Assignee’s consent
to be bound by this Agreement as a substitute Limited Partner) that are in a
form satisfactory to such General Partner (as determined in its sole
discretion);


 


(c)   if required by a General
Partner, such General Partner receives an opinion of counsel satisfactory to
such General Partner to the effect that such Transfer is in compliance with
this Agreement and all applicable Law; and


 


(d)   if required by a General
Partner, the parties to the Transfer, or any one of them, pays all of the
Partnership’s reasonable expenses connected with such Transfer (including, but
not limited to, the reasonable legal and accounting fees of the Partnership).


 


SECTION 7.10.          Withdrawal and Removal of Limited
Partners.  If a Limited Partner
ceases to hold any Units, then such Limited Partner shall, with the consent of
a General Partner, withdraw from the Partnership and shall cease to be a
Limited Partner and to have the power to exercise any rights or powers of a
Limited Partner.


 


ARTICLE VIII


 


DISSOLUTION, LIQUIDATION AND TERMINATION


 


SECTION 8.01.          No Dissolution.  Except as required by the Act, the
Partnership shall not be dissolved by the admission of additional Partners or
withdrawal of Partners in accordance with the terms of this Agreement.  The Partnership may be dissolved, liquidated
wound up and terminated only pursuant to the provisions of this Article VIII,
and the Partners 


 


20

















 


hereby
irrevocably waive any and all other rights they may have to cause a dissolution
of the Partnership or a sale or partition of any or all of the Partnership
assets.


 


SECTION 8.02.          Events Causing Dissolution.  The Partnership shall be dissolved and its
affairs shall be wound up upon the occurrence of any of the following events
(each, a “Dissolution Event”):


 


(a)   the entry of a decree of
judicial dissolution of the Partnership under Section 15 of the Act upon
the finding by a court of competent jurisdiction that the General Partners (i) are
permanently incapable of performing their part of this Agreement, (ii) have
been guilty of conduct that is calculated to affect prejudicially the carrying
on of the business of the Partnership, (iii) willfully or persistently
commit a material breach of this Agreement or (iv) conduct themselves in a
manner relating to the Partnership or its business such that it is not
reasonably practicable for the other Partners to carry on the business of the
Partnership with the General Partners;


 


(b)   any event which makes it
unlawful for the business of the Partnership to be carried on by the Partners;


 


(c)   the written consent of
all Partners;


 


(d)   any other event not
inconsistent with any provision hereof causing a dissolution of the Partnership
under the Act;


 


(e)   the Incapacity or
removal of the General Partners or the occurrence of any other event which
causes the General Partners to cease to be the general partners of the
Partnership; provided that  the
Partnership will not be dissolved or required to be wound up in connection with
any of the events specified in this Section 8.02(e) if: (i) at
the time of the occurrence of such event there is at least one other general
partner of the Partnership who is hereby authorized to, and elects to, carry on
the business of the Partnership; or (ii) all remaining Limited Partners
consent to or ratify the continuation of the business of the Partnership and
the appointment of another general partner of the Partnership effective as of
the event that caused the General Partners to cease to be general partners of
the Partnership, within 90 days following the occurrence of any such event,
which consent shall be deemed (and if requested each Limited Partner shall
provide a written consent or ratification) to have been given for all Limited
Partners if the holders of more than 50% of the Units then outstanding agree in
writing to so continue the business of the Partnership.


 


SECTION 8.03.          Distribution upon Dissolution.  Upon dissolution, the Partnership shall not
be terminated and shall continue until the winding up of the affairs of the
Partnership is completed. Upon the winding up of the Partnership, a General
Partner, or any other Person designated by a General Partner (the “Liquidation
Agent”), shall take full account of the assets and liabilities of the
Partnership and shall, unless a General Partner determines otherwise, liquidate
the assets of the Partnership as promptly as is consistent with obtaining the
fair value thereof. The proceeds of any liquidation shall be applied and
distributed in the following order:


 


(a)   First, to the
satisfaction of debts and liabilities of the Partnership (including
satisfaction of all indebtedness to Partners and their Affiliates to the extent
otherwise 


 


21

















 


permitted by Law) including the expenses of
liquidation, and including the establishment of any reserve which the
Liquidation Agent shall deem reasonably necessary for any contingent,
conditional or unmatured contractual liabilities or obligations of the
Partnership (“Contingencies”). Any such reserve may be paid over by the
Liquidation Agent to any attorney-at-law, or acceptable party, as escrow agent,
to be held for disbursement in payment of any Contingencies and, at the
expiration of such period as shall be deemed advisable by the Liquidation Agent
for distribution of the balance in the manner hereinafter provided in this Section 8.03;
and


 


(b)   The balance, if any, to
the Partners, pro rata to each of
the Partners in accordance with their Percentage Interests.


 


SECTION 8.04.          Time for Liquidation.  A reasonable amount of time shall be allowed
for the orderly liquidation of the assets of the Partnership and the discharge
of liabilities to creditors so as to enable the Liquidation Agent to minimize
the losses attendant upon such liquidation.


 


SECTION 8.05.          Termination.  The Partnership shall terminate when all of
the assets of the Partnership, after payment of or due provision for all debts,
liabilities and obligations of the Partnership, shall have been distributed to
the holders of Units in the manner provided for in this Article VIII and a
notice of dissolution signed by a General Partner has been filed with the
Cayman Islands Registrar of Exempted Limited Partnerships.


 


SECTION 8.06.          Claims of the Partners.  The Partners shall look solely to the
Partnership’s assets for the return of their Capital Contributions, and if the
assets of the Partnership remaining after payment of or due provision for all
debts, liabilities and obligations of the Partnership are insufficient to
return such Capital Contributions, the Partners shall have no recourse against
the Partnership or any other Partner or any other Person. No Partner with a
negative balance in such Partner’s Capital Account shall have any obligation to
the Partnership or to the other Partners or to any creditor or other Person to
restore such negative balance during the existence of the Partnership, upon
dissolution or termination of the Partnership or otherwise, except to the
extent required by the Act.


 


SECTION 8.07.          Survival of Certain Provisions.  Notwithstanding anything to the contrary in
this Agreement, the provisions of Section 9.02 and Section 10.10
shall survive the termination of the Partnership.


 


ARTICLE IX


 


LIABILITY AND INDEMNIFICATION


 


SECTION 9.01.          Liability of Partners.


 


(a)   No Limited Partner shall
be liable for any debt, obligation or liability of the Partnership or of any
other Partner or have any obligation to restore any deficit balance in its
Capital Account solely by reason of being a Partner of the Partnership, except
to the extent required by the Act.


 


22














 


(b)   This Agreement is not
intended to, and does not, create or impose any fiduciary duty on any of the
Partners (including without limitation, the General Partners) hereto or on
their respective Affiliates. Further, the Partners hereby waive any and all
fiduciary duties that, absent such waiver, may exist at or be implied by Law,
and in doing so, recognize, acknowledge and agree that their duties and
obligations to one another and to the Partnership are only as expressly set
forth in this Agreement and those required by the Act.


 


(c)   To the extent that,
under Law, any Partner (including without limitation, the General Partners) has
duties (including fiduciary duties) and liabilities relating thereto to the
Partnership or to another Partner, the Partners (including without limitation,
the General Partners) acting under this Agreement will not be liable to the
Partnership or to any such other Partner for their good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent
that they restrict or eliminate the duties and liabilities relating thereto of
any Partner (including without limitation, the General Partners) otherwise
existing under Law, are agreed by the Partners to replace to that extent such
other duties and liabilities of the Partners relating thereto (including
without limitation, the General Partners).


 


(d)   The General Partners may
consult with legal counsel, accountants and financial or other advisors and any
act or omission suffered or taken by the General Partners on behalf of the
Partnership or in furtherance of the interests of the Partnership in good faith
in reliance upon and in accordance with the advice of such counsel, accountants
or financial or other advisors will be full justification for any such act or
omission, and the General Partners will be fully protected in so acting or
omitting to act so long as such counsel or accountants or financial or other
advisors were selected with reasonable care.


 


(e)   Notwithstanding any
other provision of this Agreement or otherwise applicable provision of Law,
whenever in this Agreement a General Partner is permitted or required to make a
decision (i) in its “sole discretion” or “discretion” or under a grant of
similar authority or latitude, such General Partner shall be entitled to
consider only such interests and factors as it desires, including its own
interests, and shall, to the fullest extent permitted by applicable Law, have
no duty or obligation to give any consideration to any interest of or factors
affecting the Partnership or the Limited Partners, or (ii) in its “good
faith” or under another expressed standard, such General Partner shall act
under such express standard and shall not be subject to any other or different
standards.


 


SECTION 9.02.          Indemnification.


 


(a)   Indemnification.
To the fullest extent permitted by law, the Partnership shall indemnify any
person (including such person’s heirs, executors or administrators) who was or
is made or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit, claim or proceeding (brought in
the right of the Partnership or otherwise), whether civil, criminal,
administrative or investigative, and whether formal or informal, including
appeals, by reason of the fact that such person, or a person for whom such
person was the legal representative, is or was a Partner (including without
limitation, the General Partners) or a director, officer, partner, trustee,
employee or agent of a Partner (including without limitation, the General
Partners) or the Partnership or, while a director, officer, partner, trustee,
employee or agent of a Partner (including without limitation, the General
Partners) or the Partnership, is or was serving at 


 


23

















 


the request of the Partnership as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, limited liability company, nonprofit entity
or other enterprise or person, for and against all loss and liability suffered
and expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement reasonably incurred by such person in connection with such action,
suit, claim or proceeding, including appeals; provided
that such person shall not be entitled to indemnification hereunder only to the
extent such person’s conduct constituted fraud, bad faith or willful misconduct.
Notwithstanding the preceding sentence, except as otherwise provided in Section 9.02(c),
the Partnership shall be required to indemnify a person described in such
sentence in connection with any action, suit, claim or proceeding (or part
thereof) commenced by such person only if the commencement of such action,
suit, claim or proceeding (or part thereof) by such person was authorized by a
General Partner.


 


(b)   Advancement of
Expenses. To the fullest extent permitted by Law, the Partnership shall
promptly pay expenses (including attorneys’ fees) incurred by any person
described in Section 9.02(a) in appearing at, participating in or
defending any action, suit, claim or proceeding in advance of the final
disposition of such action, suit, claim or proceeding, including appeals, upon
presentation of an undertaking on behalf of such person to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified under this Section 9.02 or otherwise. Notwithstanding the
preceding sentence, except as otherwise provided in Section 9.02(c), the
Partnership shall be required to pay expenses of a person described in such
sentence in connection with any action, suit, claim or proceeding (or part
thereof) commenced by such person only if the commencement of such action,
suit, claim or proceeding (or part thereof) by such person was authorized by a
General Partner.


 


(c)   Unpaid Claims. If
a claim for indemnification (following the final disposition of such action,
suit, claim or proceeding) or advancement of expenses under this Section 9.02
is not paid in full within thirty (30) days after a written claim therefor by
any person described in Section 9.02(a) has been received by the
Partnership, such person may file proceedings to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the Partnership shall
have the burden of proving that such person is not entitled to the requested
indemnification or advancement of expenses under applicable Law.


 


(d)   Insurance. To the
fullest extent permitted by law, the Partnership may purchase and maintain
insurance on behalf of any person described in Section 9.02(a) against
any liability asserted against such person, whether or not the Partnership
would have the power to indemnify such person against such liability under the
provisions of this Section 9.02 or otherwise.


 


(e)   Enforcement of Rights.
The provisions of this Section 9.02 shall be applicable to all actions,
claims, suits or proceedings made or commenced on or after the date of this
Agreement, whether arising from acts or omissions to act occurring on, before
or after its adoption. The provisions of this Section 9.02 shall be deemed
to be a contract between the Partnership and each person entitled to
indemnification under this Section 9.02 (or legal representative thereof)
who serves in such capacity at any time while this Section 9.02 and the
relevant provisions of applicable Law, if any, are in effect, and any
amendment, modification or repeal hereof shall not affect any rights or
obligations then existing with respect to any state of facts or any action,
suit, claim or proceeding then or theretofore existing, or any action, suit,
claim or proceeding thereafter brought 


 


24

















 


or threatened based in whole or in part on
any such state of facts. If any provision of this Section 9.02  shall be found to be invalid or limited in
application by reason of any Law, it shall not affect the validity of the
remaining provisions hereof. The rights of indemnification provided in this Section 9.02
shall neither be exclusive of, nor be deemed in limitation of, any rights to
which any person may otherwise be or become entitled or permitted by contract,
this Agreement, insurance or as a matter of Law, both as to actions in such
person’s official capacity and actions in any other capacity, it being the
policy of the Partnership that indemnification of any person whom the
Partnership is obligated to indemnify pursuant to Section 9.02(a) shall
be made to the fullest extent permitted by Law.


 


(f)   Benefit Plans. For
purposes of this Section 9.02, references to “other enterprises” shall
include employee benefit plans; references to “fines” shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to “serving at the request of the Partnership” shall include any
service as a director, officer, employee or agent of the Partnership which
imposes duties on, or involves services by, such director, officer, employee,
or agent with respect to an employee benefit plan, its participants, or
beneficiaries.


 


(g)   Non-Exclusivity. This
Section 9.02 shall not limit the right of the Partnership, to the extent
and in the manner permitted by law, to indemnify and to advance expenses to,
and purchase and maintain insurance on behalf of, persons other than persons
described in Section 9.02(a).


 


ARTICLE X


 


MISCELLANEOUS


 


SECTION 10.01.        Severability. If any term or
other provision of this Agreement is held to be invalid, illegal or incapable
of being enforced by any rule of Law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
is not affected in any manner materially adverse to any party. Upon a
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.


 


SECTION 10.02.        Notices. All notices, requests, claims,
demands and other communications hereunder shall be in writing and shall be
given (and shall be deemed to have been duly given upon receipt) by delivery in
person, by courier service, by fax, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 10.02):


 


(a)  If to the Partnership, to:


 


25

















 


KKR Fund Holdings L.P.


c/o KKR & Co. L.P.


9 West 57th Street, Suite 4200


New York, New York, 10019


Attention:
Chief Financial Officer


Fax: (212)
750-0003


 


(b)  If to any Partner, to:


 


c/o KKR & Co. L.P.


9 West 57th Street, Suite 4200


New York, New York, 10019


Attention:
Chief Financial Officer


Fax: (212)
750-0003


 


(c) If to the General Partners, to:


 


KKR & Co. L.P.


9 West 57th Street, Suite 4200


New York, New York, 10019


Attention:
Chief Financial Officer


Fax: (212)
750-0003


 


and


 


KKR Fund Holdings GP Limited


c/o KKR & Co. L.P.


9 West 57th Street, Suite 4200


New York, New York, 10019


Attention:
Chief Financial Officer


Fax: (212)
750-0003


 


SECTION 10.03.          Cumulative Remedies. The rights
and remedies provided by this Agreement are cumulative and the use of any one
right or remedy by any party shall not preclude or waive its right to use any
or all other remedies. Said rights and remedies are given in addition to any
other rights the parties may have by Law.


 


SECTION 10.04.          Binding Effect. This Agreement
shall be binding upon and inure to the benefit of all of the parties and, to
the extent permitted by this Agreement, their successors, executors,
administrators, heirs, legal representatives and assigns.


 


SECTION 10.05.          Interpretation. Unless the
context requires otherwise: (a) any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns, pronouns and verbs shall include the plural and vice versa; (b) references
to Articles and Sections refer to Articles and Sections of this Agreement; and (c) the
terms “include,” “includes,” “including” or words of like import shall be
deemed to be followed by the words “without limitation;” and the terms “hereof,”
“herein” or “hereunder” refer to this Agreement as a whole and not to any
particular provision of this Agreement. The table of contents 


 


26

















 


and headings contained in this Agreement are
for reference purposes only, and shall not affect in any way the meaning or
interpretation of this Agreement.


 


SECTION 10.06.          Counterparts. This Agreement
may be executed and delivered (including by facsimile transmission) in one or
more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to be
an original but all of which taken together shall constitute one and the same
agreement. Copies of executed counterparts transmitted by telecopy or other
electronic transmission service shall be considered original executed
counterparts for purposes of this Section 10.06.


 


SECTION 10.07.          Further Assurances. Each
Limited Partner shall perform all other acts and execute and deliver all other
documents as may be necessary or appropriate to carry out the purposes and
intent of this Agreement.


 


SECTION 10.08.          Entire Agreement. This
Agreement constitutes the entire agreement among the parties hereto pertaining
to the subject matter hereof and supersedes all prior agreements and understandings
pertaining thereto.


 


SECTION 10.09.          Governing Law. This Agreement
shall be governed by, and construed in accordance with, the laws of the Cayman
Islands, without regard to otherwise governing principles of conflicts of law.


 


SECTION 10.10.         Arbitration.


 


(a)   Any and all disputes
which cannot be settled amicably, including any ancillary claims of any party
arising out of, relating to or in connection with the validity, negotiation,
execution, interpretation, performance or non-performance of this Agreement
(including without limitation the validity, scope and enforceability of this
arbitration provision) shall be finally settled by arbitration conducted by a
single arbitrator in New York, New York in accordance with the then-existing Rules of
Arbitration of the International Chamber of Commerce; provided, however, that
KKR Holdings L.P., a Cayman limited partnership, in its capacity as a Limited
Partner, shall not be subject to this Section 10.10. If the parties to the
dispute fail to agree on the selection of an arbitrator within thirty (30) days
of the receipt of the request for arbitration, the International Chamber of
Commerce shall make the appointment. The arbitrator shall be a lawyer and shall
conduct the proceedings in the English language. Performance under this
Agreement shall continue if reasonably possible during any arbitration
proceedings. Except as required by law or as may be reasonably required in
connection with ancillary judicial proceedings to compel arbitration, to obtain
temporary or preliminary judicial relief in aid of arbitration, or to confirm
or challenge an arbitration award, the arbitration proceedings, including any
hearings, shall be confidential, and the parties shall not disclose any awards,
any materials in the proceedings created for the purpose of the arbitration, or
any documents produced by another party in the proceedings not otherwise in the
public domain.


 


(b)   Notwithstanding the
provisions of paragraph (a), a General Partner may bring, or may cause the
Partnership to bring, on behalf of such General Partner or the Partnership or
on behalf of one or more Partners, an action or special proceeding in any court
of competent jurisdiction for the purpose of compelling a party to arbitrate,
seeking temporary or preliminary relief in aid of an arbitration hereunder, or
enforcing an arbitration award and, for the purposes of this paragraph (b),
each Partner (i) expressly consents to the application of paragraph (c) of
this 


 


27

















 


Section 10.10 to any such action or
proceeding, (ii) agrees that proof shall not be required that monetary
damages for breach of the provisions of this Agreement would be difficult to
calculate and that remedies at law would be inadequate, and (iii) irrevocably
appoints such General Partner as such Partner’s agent for service of process in
connection with any such action or proceeding and agrees that service of
process upon such agent, who shall promptly advise such Partner of any such
service of process, shall be deemed in every respect effective service of
process upon the Partner in any such action or proceeding.


 


(c)   EACH PARTNER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED
IN NEW YORK, NEW YORK FOR THE PURPOSE OF ANY JUDICIAL PROCEEDING BROUGHT IN
ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 10.10, OR ANY JUDICIAL
PROCEEDING ANCILLARY TO AN ARBITRATION OR CONTEMPLATED ARBITRATION ARISING OUT
OF OR RELATING TO OR CONCERNING THIS AGREEMENT. Such ancillary judicial
proceedings include any suit, action or proceeding to compel arbitration, to
obtain temporary or preliminary judicial relief in aid of arbitration, or to
confirm or challenge an arbitration award. The parties acknowledge that the
fora designated by this paragraph (c) have a reasonable relation to this
Agreement, the Partnership and to the parties’ relationship with one another.
The Partners and the Partnership hereby waive, to the fullest extent permitted
by applicable Law, any objection which they now or hereafter may have to
personal jurisdiction or to the laying of venue of any such ancillary suit,
action or proceeding referred to in this Section 10.10 brought in any
court referenced herein and such parties agree not to plead or claim the same.


 


SECTION 10.11.         Expenses. Except as otherwise
specified in this Agreement, the Partnership shall be responsible for all costs
and expenses, including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with its operation.


 


SECTION 10.12.         Amendments and Waivers. (a) 
This Agreement (including the Annexes hereto) may be amended, supplemented,
waived or modified by the action of the General Partners without the consent of
any other Partner; provided that any amendment that would have a
material adverse effect on the rights or preferences of any Class of Units
in relation to other Classes of Units must be approved by the holders of not
less than a majority of the Percentage Interests of the Class affected; provided
further, that the General Partners may, without the written consent of any
Limited Partner or any other Person, amend, supplement, waive or modify any
provision of this Agreement and execute, swear to, acknowledge, deliver, file
and record whatever documents may be required in connection therewith, to
reflect: (i) any amendment, supplement, waiver or modification that the
General Partners determine to be necessary or appropriate in connection with
the creation, authorization or issuance of any class or series of equity
interest in the Partnership; (ii) the admission, substitution, withdrawal
or removal of Partners in accordance with this Agreement; (iii) a change
in the name of the Partnership, the location of the principal place of business
of the Partnership or the registered office of the Partnership; (iv) any
amendment, supplement, waiver or modification that the General Partners
determine in their sole discretion to be necessary or appropriate to address
changes in U.S. federal income tax regulations, legislation or interpretation;
and (v) a change in the Fiscal Year or taxable year of the Partnership and
any other changes that the General Partners determine to be necessary or
appropriate as a result of a change 


 


28

















 


in the Fiscal
Year or taxable year of the Partnership including a change in the dates on
which distributions are to be made by the Partnership.


 


(b)   No failure or delay by
any party in exercising any right, power or privilege hereunder (other than a
failure or delay beyond a period of time specified herein) shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by Law.


 


(c)   The General Partners
may, in their sole discretion, unilaterally amend this Agreement on or before
the effective date of the final regulations to provide for (i) the
election of a safe harbor under proposed Treasury Regulation Section 1.83-3(l) (or
any similar provision) under which the fair market value of a partnership
interest that is transferred is treated as being equal to the liquidation value
of that interest, (ii) an agreement by the Partnership and each of its
Partners to comply with all of the requirements set forth in such regulations
and Notice 2005-43 (and any other guidance provided by the U.S. Internal Revenue
Service with respect to such election) with respect to all partnership
interests transferred in connection with the performance of services while the
election remains effective, (iii) the allocation of items of income,
gains, deductions and losses required by the final regulations similar to
proposed Treasury Regulation Section 1.704-1(b)(4)(xii)(b) and (c),
and (iv) any other related amendments.


 


(d)   Except as may be
otherwise required by law in connection with the winding-up, liquidation, or
dissolution of the Partnership, each Partner hereby irrevocably waives any and
all rights that it may have to maintain an action for judicial accounting or
for partition of any of the Partnership’s property.


 


SECTION 10.13.         No Third Party Beneficiaries. This
Agreement shall be binding upon and inure solely to the benefit of the parties
hereto and their permitted assigns and successors and nothing herein, express
or implied, is intended to or shall confer upon any other Person or entity, any
legal or equitable right, benefit or remedy of any nature whatsoever under or
by reason of this Agreement (other than pursuant to Section 5.01(d) and
Section 9.02).


 


SECTION 10.14.         Headings. The headings and
subheadings in this Agreement are included for convenience and identification
only and are in no way intended to describe, interpret, define or limit the
scope, extent or intent of this Agreement or any provision hereof.


 


SECTION 10.15.         Construction. Each party hereto
acknowledges and agrees it has had the  opportunity
to draft, review and edit the language of this Agreement and that it is the
intent of the parties hereto that no presumption for or against any party
arising out of drafting all or any part of this Agreement will be applied in
any dispute relating to, in connection with or involving this Agreement.
Accordingly, the parties hereby waive to the fullest extent permitted by law
the benefit of any rule of Law or any legal decision that would require
that in cases of uncertainty, the language of a contract should be interpreted
most strongly against the party who drafted such language.


 


SECTION 10.16.         Power of Attorney. (a) 
Each Limited Partner, by its execution hereof, hereby irrevocably makes,
constitutes and appoints each General Partner as its


 


29

















 


true and
lawful agent and attorney in fact, with full power of substitution and full
power and authority in its name, place and stead, to make, execute, sign,
acknowledge, swear to, record and file (a) this Agreement and any amendment
to this Agreement that has been adopted as herein provided; (b) the
Statement and all amendments thereto required or permitted by law or the
provisions of this Agreement; (c) all statements and other instruments
(including consents and ratifications which the Limited Partners have agreed to
provide upon a matter receiving the agreed support of Limited Partners) deemed
advisable by a General Partner to carry out the provisions of this Agreement
(including the provisions of Section 7.04) and Law or to permit the
Partnership to become or to continue as a limited partnership or partnership
wherein the Limited Partners have limited liability in each jurisdiction where
the Partnership may be doing business; (d) all instruments that a General
Partner deems appropriate to reflect a change or modification of this Agreement
or the Partnership in accordance with this Agreement, including, without
limitation, the admission of additional Limited Partners or substituted Limited
Partners pursuant to the provisions of this Agreement; (e) all conveyances
and other instruments or papers deemed advisable by a General Partner to effect
the liquidation and termination of the Partnership; and (f) all fictitious
or assumed name certificates required or permitted (in light of the Partnership’s
activities) to be filed on behalf of the Partnership.


 


(b)   The appointment by all
Limited Partners of each General Partner as attorney-in-fact will be deemed to
be a power coupled with an interest, in recognition of the fact that each of
the Partners under this Agreement will be relying upon the power of the General
Partners to act as contemplated by this Agreement in any filing and other
action by it on behalf of the Partnership, will survive the disability or
Incapacity of any Person hereby giving such power, and the transfer or
assignment of all or any portion of the Units of such Person, and will not be
affected by the subsequent Incapacity of the principal. In the event of the
assignment by a Partner of all of its Units, the foregoing power of attorney of
an assignor Partner will survive such assignment until such Partner has
withdrawn from the Partnership pursuant to Section 7.10.


 


SECTION 10.17.         Schedules. A General Partner may
from time to time execute and deliver to the Limited Partners schedules which
set forth information contained in the books and records of the Partnership and
any other matters deemed appropriate by such General Partner. Such schedules
shall be for information purposes only and shall not be deemed to be part of
this Agreement for any purpose whatsoever.


 


SECTION 10.18.         Partnership Status. The parties
intend to treat the Partnership as a partnership for U.S. federal income tax
purposes, and no person shall take any action inconsistent with such
classification.


 


[Remainder of Page Intentionally
Left Blank]


 


30

















 


IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as a deed or have caused this Agreement to be duly
executed as a deed by their respective authorized officers, in each case on the
date first above stated.


 


Executed as a deed


 


	
  KKR & CO. L.P., as General Partner

  	
   

  
	
   

  	
   

  
	
  By:

  	
  KKR Management LLC, its general partner

  	
   

  
	
   

  	
   

  
	
   

  	
  Witnessed by:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Name:

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  Executed as a deed

  	
   

  
	
   

  	
   

  
	
  KKR FUND HOLDINGS GP LIMITED, as General
  Partner

  	
  Witnessed by:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Name:

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  Executed as a deed

  	
   

  
	
   

  	
   

  
	
  KKR INTERMEDIATE PARTNERSHIP L.P., as
  Limited Partner

  	
   

  
	
   

  	
   

  
	
  By: KKR Fund Holdings GP Limited, its
  general partner

  	
  Witnessed by:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Name:

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  Executed as a deed

  	
  Witnessed by:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  William J. Janetschek, as Initial Limited
  Partner

  	
  Name:

  
					



 


[Amended and Restated Limited Partnership
Agreement of KKR Fund Holdings L.P.]


 


31

















 


ANNEX
A


 


KKR & Co. L.P.


9 West 57th Street, Suite 4200


New York, New York, 10014


 


[Date]


 


Dear [           ],


 


Reference herein is made to the Amended and
Restated Limited Partnership Agreement of KKR Fund Holdings L.P. (the “Partnership”)
dated [         ], 2008 by and
between KKR & Co. L.P. and KKR Fund Holdings GP Limited, as general
partners, and KKR Intermediate Partnership L.P., as limited partner, as it may
be amended from time to time (the “Agreement”). By signing below, you
acknowledge your admission to the Partnership as a new or substitute Limited
Partner pursuant to Sections 2.08 and 7.09 and you agree to be bound by the
terms and conditions in the Agreement.


 


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  	
   

  
	
   

  	
  KKR & CO. L.P., as General Partner
  of the 

  
	
   

  	
  Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  KKR Management LLC, its general 

  
	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


Agreed and Accepted on the date first set forth above:


 


[     ]