exv10w2






Exhibit 10.2



 


FORM OF




AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT



OF



CARLYLE HOLDINGS II L.P.



Dated as of _______, 2012



 


THE PARTNERSHIP UNITS OF CARLYLE HOLDINGS II 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; (II) THE TERMS AND CONDITIONS OF THIS AMENDED
AND RESTATED LIMITED PARTNERSHIP AGREEMENT; AND (III) ANY OTHER TERMS AND CONDITIONS AGREED TO IN
WRITING BETWEEN THE GENERAL PARTNER AND THE APPLICABLE LIMITED PARTNER. THE UNITS MAY NOT BE
TRANSFERRED OF RECORD EXCEPT IN COMPLIANCE WITH SUCH LAWS; THIS LIMITED PARTNERSHIP AGREEMENT; AND
ANY OTHER TERMS AND CONDITIONS AGREED TO IN WRITING BY THE GENERAL PARTNER AND THE APPLICABLE
LIMITED PARTNER. 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
	 	 	9	 
	SECTION 2.02. Name
	 	 	10	 
	SECTION 2.03. Term
	 	 	10	 
	SECTION 2.04. Offices
	 	 	10	 
	SECTION 2.05. Agent for Service of Process; Existence and Good
Standing; Foreign Qualification
	 	 	10	 
	SECTION 2.06. Business Purpose
	 	 	11	 
	SECTION 2.07. Powers of the Partnership
	 	 	11	 
	SECTION 2.08. Partners; Admission of New Partners
	 	 	11	 
	SECTION 2.09. Withdrawal
	 	 	11	 
	SECTION 2.10. Investment Representations of Partners
	 	 	11	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	MANAGEMENT
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. General Partner
	 	 	11	 
	SECTION 3.02. Compensation
	 	 	12	 
	SECTION 3.03. Expenses
	 	 	12	 
	SECTION 3.04. Officers
	 	 	13	 
	SECTION 3.05. Authority of Partners
	 	 	13	 
	SECTION 3.06. Action by Written Consent or Ratification
	 	 	14	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	DISTRIBUTIONS
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. Distributions
	 	 	14	 
	SECTION 4.02. Liquidation Distribution
	 	 	15	 
	SECTION 4.03. Limitations on Distribution
	 	 	15	 






-i-









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS;
	 	 	 	 
	TAX ALLOCATIONS; TAX MATTERS
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Initial Capital Contributions
	 	 	15	 
	SECTION 5.02. No Additional Capital Contributions
	 	 	15	 
	SECTION 5.03. Capital Accounts
	 	 	16	 
	SECTION 5.04. Allocations of Profits and Losses
	 	 	16	 
	SECTION 5.05. Special Allocations
	 	 	16	 
	SECTION 5.06. Tax Allocations
	 	 	17	 
	SECTION 5.07. Tax Advances
	 	 	18	 
	SECTION 5.08. Tax Matters
	 	 	18	 
	SECTION 5.09. Other Allocation Provisions
	 	 	19	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	BOOKS AND RECORDS; REPORTS
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Books and Records
	 	 	19	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	PARTNERSHIP UNITS
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.01. Units
	 	 	19	 
	SECTION 7.02. Register
	 	 	20	 
	SECTION 7.03. Registered Partners
	 	 	20	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	VESTING; FORFEITURE OF INTERESTS; TRANSFER RESTRICTIONS
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.01. Vesting of Unvested Units
	 	 	21	 
	SECTION 8.02. Forfeiture of Units
	 	 	21	 
	SECTION 8.03. Limited Partner Transfers
	 	 	22	 
	SECTION 8.04. Mandatory Exchanges
	 	 	23	 
	SECTION 8.05. Encumbrances
	 	 	23	 
	SECTION 8.06. Further Restrictions
	 	 	23	 
	SECTION 8.07. Rights of Assignees
	 	 	24	 
	SECTION 8.08. Admissions, Withdrawals and Removals
	 	 	25	 
	SECTION 8.09. Admission of Assignees as Substitute Limited Partners
	 	 	25	 
	SECTION 8.10. Withdrawal and Removal of Limited Partners
	 	 	25	 
	SECTION 8.11. No Solicitation
	 	 	26	 
	SECTION 8.12. Minimum Retained Ownership Requirement
	 	 	26	 






-ii-









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	DISSOLUTION, LIQUIDATION AND TERMINATION
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01. No Dissolution
	 	 	27	 
	SECTION 9.02. Events Causing Dissolution
	 	 	27	 
	SECTION 9.03. Distribution upon Dissolution
	 	 	28	 
	SECTION 9.04. Time for Liquidation
	 	 	28	 
	SECTION 9.05. Termination
	 	 	28	 
	SECTION 9.06. Claims of the Partners
	 	 	28	 
	SECTION 9.07. Survival of Certain Provisions
	 	 	29	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	LIABILITY AND INDEMNIFICATION
	 	 	 	 
	 
	 	 	 	 
	SECTION 10.01. Liability of Partners
	 	 	29	 
	SECTION 10.02. Indemnification
	 	 	30	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	SECTION 11.01. Severability
	 	 	32	 
	SECTION 11.02. Notices
	 	 	32	 
	SECTION 11.03. Cumulative Remedies
	 	 	33	 
	SECTION 11.04. Binding Effect
	 	 	33	 
	SECTION 11.05. Interpretation
	 	 	33	 
	SECTION 11.06. Counterparts
	 	 	34	 
	SECTION 11.07. Further Assurances
	 	 	34	 
	SECTION 11.08. Entire Agreement
	 	 	34	 
	SECTION 11.09. Governing Law
	 	 	34	 
	SECTION 11.10. Dispute Resolution
	 	 	34	 
	SECTION 11.11. Expenses
	 	 	37	 
	SECTION 11.12. Amendments and Waivers
	 	 	37	 
	SECTION 11.13. No Third Party Beneficiaries
	 	 	38	 
	SECTION 11.14. Headings
	 	 	38	 
	SECTION 11.15. Power of Attorney
	 	 	38	 
	SECTION 11.16. Separate Agreements; Schedules
	 	 	39	 
	SECTION 11.17. Partnership Status
	 	 	39	 
	SECTION 11.18. Delivery by Facsimile or Email
	 	 	39	 






-iii-









 





FORM OF




AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT



OF



CARLYLE HOLDINGS II L.P.



          This AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (this “Agreement”) of Carlyle
Holdings II L.P. (the “Partnership”) is made as of the ___ day of _______, 2012, by and
among Carlyle Holdings II GP L.L.C., a limited liability company formed under the laws of the State
of Delaware, as general partner, and the Limited Partners (as defined herein) of the Partnership.




          WHEREAS, the Partnership was formed as a limited partnership pursuant to the Act, by the
execution of the Limited Partnership Agreement of the Partnership dated as of November 29, 2011
(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 Civil Code and An Act respecting the legal publicity of
enterprises (Québec), R.S.Q., c. P-44.1, as they may be amended from time to time, and the
laws of Québec applicable to partnerships.




     “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)(d)(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), 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 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. For purposes of the definition of
“Affiliate,” Affiliates of the Mubadala Holders shall only include Mubadala Development
Company PJSC and its direct and indirect subsidiaries.




     “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 8.07.




     “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 which the 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 which the 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.




     “CalPERS” means the California Public Employees’ Retirement System.




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




     “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.




     “Carlyle Holdings Partnerships” means each of the Partnership, Carlyle Holdings
I L.P., a Delaware limited partnership, and Placements Carlyle III S.E.C./Carlyle Holdings
III L.P., a Québec société en commandite.




     “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



2









 







of contribution as determined by the General Partner, and the Carrying Values of all
Partnership assets shall 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 Partnership interest 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 Partnership
interest is relinquished to the Partnership; or (d) any other date specified in the Treasury
Regulations; provided, however, that adjustments pursuant to clauses (a), (b) (c) and (d)
above shall be made only if such adjustments are deemed necessary or appropriate by the
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.




     “Cause” means, with respect to each Person that is or was at any time a Service
Provider, the General Partner has determined in good faith that such Person has (A) engaged
in gross negligence or willful misconduct in the performance of the duties required of such
Person under any employment or services agreement between such Person and the Issuer or any
Affiliate thereof, (B) willfully engaged in conduct that such Person knows or, based on
facts known to such Person, should know is materially injurious to the Issuer or any
Affiliate thereof, (C) materially breached any material provision of any employment or
services agreement between such Person and the Issuer or any Affiliate thereof, (D) been
convicted of, or entered a plea bargain or settlement admitting guilt for, fraud,
embezzlement, or any other felony under the laws of the United States or of any state or the
District of Columbia or any other country or any jurisdiction of any other country (but
specifically excluding felonies involving a traffic violation); (E) been the subject of any
order, judicial or administrative, obtained or issued by the U.S. Securities and Exchange
Commission or similar agency or tribunal of any country, for any securities law violation
involving insider trading, fraud, misappropriation, dishonesty or willful misconduct
(including, for example, any such order consented to by such Person in which findings of
facts or any legal conclusions establishing liability are neither admitted nor denied); (F)
without the express approval of the General Partner, disclosed to the public or to any press
reporter or on any public media the name of or fundraising efforts of any private fund
vehicle that is sponsored by the Issuer or any Affiliate thereof and has not had a final
closing of commitments or (G) has breached any Restrictive Covenant to which such Person is
subject.




     “Civil Code” means the Civil Code of Québec, RSQ c. C-1991, as it may be
amended from time to time.




     “Class” means the classes of Units into which the interests in the Partnership
may be classified or divided from time to time by the General Partner in its sole discretion
pursuant



3









 







to the provisions of this Agreement. As of the date of this Agreement the only Class is
the Class A Units. Subclasses within a Class shall not be separate Classes for purposes of
this Agreement. For all purposes hereunder and under the Act, only such Classes expressly
established under this Agreement, including by the General Partner in accordance with this
Agreement, shall be deemed to be a class of limited partner interests in the Partnership.
For the avoidance of doubt, to the extent that the General Partner holds limited partner
interests of any Class, the General Partner shall not be deemed to hold a separate Class of
such interests from any other Limited Partner because it is the General Partner.




     “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 Internal Revenue Code of 1986, as amended from time to time.




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




     “Consenting Party” has the meaning set forth in Section 11.10(a).




     “Contingencies” has the meaning set forth in Section 9.03(a).




     “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 United
States 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 with the term “creditable
foreign tax” in Treasury Regulations Section 1.704-1(b)(4)(viii), and shall be interpreted consistently
therewith.




     “Declaration” means the registration declaration of the Partnership filed with
the Registraire des entreprises (Québec) pursuant to the Act, as amended from time to time.




     “Dispute” has the meaning set forth in Section 11.10(a).




     “Dissolution Event” has the meaning set forth in Section 9.02.




     “Encumbrance” means any mortgage, hypothecation, claim, lien, encumbrance,
conditional sales or other title retention agreement, right of first refusal, preemptive
right,



4









 







pledge, option, charge, security interest or other similar interest, easement, judgment
or imperfection of title of any nature whatsoever.




     “ERISA” means The Employee Retirement Income Security Act of 1974, as amended.




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




     “Exchange Agreement” means the exchange agreement dated as of or about the date
hereof among the Issuer, the Carlyle Holdings Partnerships, the limited partners of the
Carlyle Holdings Partnerships from time to time party thereto, and the other parties
thereto, 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, unless otherwise determined by the General Partner in its
sole discretion in accordance with Section 11.12, (i) the period commencing upon the
formation of the Partnership and ending on December 31, 2011 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.




     “General Partner” means Carlyle Holdings II GP L.L.C., a limited liability
company formed under the laws of the State of Delaware, or any successor general partner
admitted to the Partnership in accordance with the terms of this Agreement.




     “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.




     “Indemnitee” (a) the General Partner, (b) any additional or substitute General
Partner, (c) any Person who is or was a Tax Matters Partner, officer or director of the
General Partner or any additional or substitute General Partner, (d) any officer or director
of the General Partner or any additional or substitute General Partner who is or was serving
at the request of the General Partner or any additional or substitute General Partner as an
officer, director, employee, member, partner, Tax Matters Partner, agent, fiduciary or
trustee of another Person; provided that a Person shall not be an Indemnitee by reason of
providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (e) any
Person the General Partner in its sole discretion designates as an “Indemnitee” for purposes
of this Agreement and (f) any heir, executor or administrator with respect to Persons named
in clauses (a) through (e).



5









 






     “Initial Limited Partner” means each Limited Partner as of the date of this
Agreement.




     “Initial Units” means, with respect to any Initial Limited Partner, the
aggregate number of Class A Units owned by such Initial Limited Partner as of the date of
this Agreement.




     “Issuer” means The Carlyle Group L.P., a limited partnership formed under the
laws of the State of Delaware, or any successor thereto.




     “Issuer General Partner” means Carlyle Group Management L.L.C., a limited
liability company formed under the laws of the State of Delaware and the general partner of
the Issuer, or any successor general partner of the Issuer.




     “Issuer Partnership Agreement” means the Amended and Restated Agreement of
Limited Partnership of the Issuer, as such agreement of limited partnership may be amended,
supplemented or restated from time to time.




     “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.




     “Limited Partner” means a special partner, as defined in the Act and, more
specifically, each of the Persons from time to time listed as a limited partner in the books
and records of the Partnership, and, for purposes of Sections 8.01, 8.02, 8.03, 8.04, 8.05
and 8.06, and 8.12 any Personal Planning Vehicle of such Limited Partner.




     “Liquidation Agent” has the meaning set forth in Section 9.03.




     “Mubadala Holders” means, collectively, MDC/TCP Investments (Cayman) I, Ltd., a
Cayman Islands exempted company, MDC/TCP Investments (Cayman) II, Ltd., a Cayman Islands
exempted company, MDC/TCP Investments (Cayman) III, Ltd., a Cayman Islands exempted company,
MDC/TCP Investments (Cayman) IV, Ltd., a Cayman Islands exempted company, MDC/TCP
Investments (Cayman) V, Ltd., a Cayman Islands exempted company, MDC/TCP Investments
(Cayman) VI, Ltd., a Cayman Islands exempted company, and Five Overseas Investment L.L.C., a
United Arab Emirates limited liability company registered in the Emirate of Abu Dhabi, and,
to the extent such Persons are permitted Transferees, each of Mubadala Development Company
PJSC and its direct and indirect subsidiaries.




     “Minimum Retained Ownership Requirement” has the meaning set forth in Section
8.12.




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



6









 






     “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
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).




     “Officer” means each Person designated as an officer of the Partnership by the
General Partner pursuant to and in accordance with the provisions of Section 3.04, subject
to any resolutions of the General Partner appointing such Person as an officer of the
Partnership or relating to such appointment.




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




     “Partners” means, at any time, each person listed as a Partner (including the
General Partner) 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).




     “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).




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




     “Personal Planning Vehicle” means, in respect of any Person that is a natural
person, any other Person that is not a natural person designated as a “Personal Planning
Vehicle” of such natural person in the books and records of the Partnership.




     “Primary Indemnification” has the meaning set forth in Section 10.02(a).




     “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; (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



7









 







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 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 Partner 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.




     “Restrictive Covenant” means Section 8.11 hereof and/or any provision of any
agreement wherein a Limited Partner has agreed not to compete with the Issuer or any
Affiliate thereof or to solicit any investor in any investment vehicle advised or to be
advised by the Issuer or any Affiliate thereof or to solicit any employee or other service
provider of the Issuer or any Affiliate thereof.




     “Restrictive Covenant Period” has the meaning set forth in Section 8.11 hereof.




     “Service Provider” means any Limited Partner (in his, her or its individual
capacity) or other Person, who at the time in question, is employed by or providing services
to the Issuer General Partner, the Issuer, the General Partner, the Partnership or any of
its subsidiaries. For the avoidance of doubt, neither CalPERS nor any Mubadala Holder is a
Service Provider.




     “Securities Act” means the U.S. Securities Act of 1933, as amended, and 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 Partner (or other persons responsible for the investment and operation of the
Partnership’s assets) to laws or regulations that are similar to the fiduciary
responsibility or prohibited transaction provisions contained in Title I of ERISA or Section
4975 of the Code.




     “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).



8









 






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




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




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




     “Transferee” means any Person that is a permitted 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).




     “Units” means the Class A Units and any other Class of Units that is
established 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.




     “Unvested Units” means those Units from time to time listed as unvested Units
in the books and records of the Partnership.




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




     “Vested Units” means those Units listed as vested Units in the books and
records of the Partnership, as the same may be amended from time to time in accordance with
this Agreement.



ARTICLE II




FORMATION, TERM, PURPOSE AND POWERS



          SECTION 2.01. Formation. The Partnership was formed as a limited partnership under the provisions of the Act by the
execution of the Original Agreement. A Declaration was filed with the Registraire des entreprises
(Québec) as of December 1, 2011, in accordance with the provisions of the Act. If requested by the
General Partner, the Limited Partners shall promptly execute all certificates and other documents
consistent with the terms of this Agreement necessary for the General Partner to accomplish all
filing, recording, publishing and other acts as may be






9









 







appropriate to comply with all requirements for (a) the formation and operation of a limited
partnership under the laws of the Province of Québec, (b) if the 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. The rights, powers,
duties, obligations and liabilities of the Partners shall be determined pursuant to the Act and
this Agreement. To the extent that the rights, powers, duties, obligations and liabilities of any
Partner are different by reason of any provision of this Agreement than they would be in the
absence of such provision, this Agreement shall, to the extent permitted by the Act, control.




          SECTION 2.02. Name. The name of the Partnership shall be, and the business of the Partnership shall be conducted
under the name of “Placements Carlyle II s.e.c. and, in its English version, Carlyle Holdings II
L.P.,” and all Partnership business shall be conducted in that name or in such other names that
comply with applicable law as the General Partner in its sole discretion may select from time to
time. Subject to the Act, the General Partner may change the name of the Partnership (and amend
this Agreement to reflect such change) at any time and from time to time without the consent of any
other Person. Prompt notification of any such change shall be given to all Partners.




          SECTION 2.03. Term. The term of the Partnership commenced on the date of the Original Agreement, and the
term shall continue until the dissolution of the Partnership in accordance with Article IX. The
existence of the Partnership shall continue until dissolution of the Partnership in the manner
required by the Act.




          SECTION 2.04. Offices. The Partnership may have offices at such places either within or outside the Province of
Québec as the General Partner from time to time may select. As of the date hereof, the principal
place of business and office of the Partnership is located at 1001 Pennsylvania Avenue, N.W.,
Washington, D.C. 20004. The Québec domicile of the Partnership shall be located at 1 Place Ville
Marie, 37th Floor, Montreal, Québec, Canada H3B 3P4.




          SECTION 2.05. Agent for Service of Process; Existence and Good Standing; Foreign
Qualification. (a)The Partnership’s registered agent and registered office for service of process in
the Province of Québec shall be as set forth in the Declaration, or such other person as the
General Partner shall designate in its sole discretion from time to time.




          (b) The General Partner may take all action which may be necessary or appropriate (i) for the
continuation of the Partnership’s valid existence as a sociéte en commandite under the laws of the
Province of Québec (and of each other jurisdiction in which such existence is necessary to enable
the Partnership to conduct the business in which it is engaged) and (ii) for the maintenance,
preservation and operation of the business of the Partnership in accordance with the provisions of
this Agreement and applicable laws and regulations. The General Partner may file or cause to be
filed for recordation in the proper office or offices in each other jurisdiction in which the
Partnership is formed or qualified, such certificates (including certificates of limited
partnership and fictitious name certificates) and other documents as are required by the applicable
statutes, rules or regulations of any such jurisdiction or as are required to reflect the identity
of the Partners. The General Partner may cause the Partnership to comply, to the extent procedures
are available






10









 







and those matters are reasonably within the control of the Officers, with all requirements
necessary to qualify the Partnership to do business in any jurisdiction other than the Province of
Québec.




          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 for
which limited partnerships may be formed under the Act.




          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 and other property 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 Partners. Each of the Persons listed 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.
Subject to Section 8.09 with respect to substitute Limited Partners, a Person may be admitted from
time to time as a new Limited Partner with the written consent of the General Partner in its sole
discretion. Each new Limited Partner shall execute and deliver to the General Partner an
appropriate supplement to this Agreement pursuant to which the new Limited Partner agrees to be
bound by the terms and conditions of the Agreement, as it may be amended from time to time. A new
General Partner or substitute General Partner may be admitted to the Partnership solely in
accordance with Section 8.08 or Section 9.02(e) hereof.




          SECTION 2.09. Withdrawal. 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 VIII.




          SECTION 2.10. Investment Representations of Partners. Each Partner hereby represents, warrants and acknowledges to the Partnership that: (a) such
Partner has such knowledge and experience in financial and business matters and is capable of
evaluating the merits and risks of an investment in the Partnership and is making an informed
investment decision with respect thereto; (b) such Partner is acquiring interests in the
Partnership for investment only and not with a view to, or for resale in connection with, any
distribution to the public or public offering thereof; and (c) the execution, delivery and
performance of this Agreement have been duly authorized by such Partner.




ARTICLE III




MANAGEMENT



     SECTION 3.01. General Partner. (a) The business, property and affairs of the Partnership shall be managed under the sole,
absolute and exclusive direction of the General



11









 




Partner, which may from time to time delegate authority to Officers or to others to act on
behalf of the Partnership.




          (b) Without limiting the foregoing provisions of this Section 3.01, the 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 establish and enforce limits of authority and internal controls with
respect to all personnel and functions;




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




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




     (vii) 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 Partner shall not be entitled to any compensation for services rendered to the
Partnership in its capacity as General Partner.




          SECTION 3.03. Expenses. The Partnership shall pay, or cause to be paid, all costs, fees, operating expenses and
other expenses of the Partnership (including the costs, fees and expenses of attorneys, accountants
or other professionals) incurred in pursuing and conducting, or otherwise related to, the
activities of the Partnership. The Partnership shall also, in the sole discretion of the General
Partner, bear and/or reimburse the General Partner for (i) any costs, fees or expenses incurred by
the General Partner in connection with serving as the General Partner, (ii) all other expenses
allocable to the Partnership or otherwise incurred by the General Partner in connection with
operating the Partnership’s business (including expenses allocated to the General Partner by its
Affiliates) and (iii) all costs, fees or expenses owed directly or indirectly by the Partnership or
the General Partner to the Issuer General Partner pursuant to their reimbursement obligations
under, or which are otherwise allocated to the General Partner pursuant to, the Issuer Partnership
Agreement. To the extent that the General Partner determines in its sole discretion that such
expenses are related to the business and affairs of the General Partner that are conducted






12









 







through the Partnership and/or its subsidiaries (including expenses that relate to the
business and affairs of the Partnership and/or its subsidiaries and that also relate to other
activities of the General Partner), the General Partner may cause the Partnership to pay or bear
all expenses of the General Partner, including, without limitation, compensation and meeting costs
of any board of directors or similar body of the General Partner, any salary, bonus, incentive
compensation and other amounts paid to any Person including Affiliates of the General Partner to
perform services for the Partnership, litigation costs and damages arising from litigation,
accounting and legal costs and franchise taxes, provided that the Partnership shall not pay or bear
any income tax obligations of the General Partner. Reimbursements pursuant to this Section 3.03
shall be in addition to any reimbursement to the General Partner as a result of indemnification
pursuant to Section 10.02.




          SECTION 3.04. Officers. Subject to the direction and oversight of the General Partner, the day-to-day
administration of the business of the Partnership may be carried out by persons who may be
designated as officers by the General Partner, with titles including but not limited to “assistant
secretary,” “assistant treasurer,” “chairman,” “chief executive officer,” “chief financial
officer,” “chief operating officer,” “chief risk officer,” “director,” “general counsel,” “general
manager,” “managing director,” “president,” “principal accounting officer,” “secretary,” “senior
chairman,” “senior managing director,” “treasurer,” “vice chairman” or “vice president,” and as and
to the extent authorized by the 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 the General
Partner and otherwise as shall customarily pertain to such offices. Any number of offices may be
held by the same person. In its sole discretion, the General Partner may choose not to fill any
office for any period as it may deem advisable. All officers and other persons providing services
to or for the benefit of the Partnership shall be subject to the supervision and direction of the
General Partner and may be removed, with or without cause, from such office by the General Partner
and the authority, duties or responsibilities of any employee, agent or officer of the Partnership
may be suspended by the General Partner from time to time, in each case in the sole discretion of
the General Partner. The General Partner shall not 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. Other than exercising a Limited Partner’s rights and powers as a Limited Partner, as
contemplated in the Act, no Limited Partner, in its capacity as such, shall participate in 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, no Limited Partner shall have any
right to vote on any matter involving the Partnership, including with respect to any merger,
consolidation, combination or conversion of the Partnership, or any other matter that a limited
partner might otherwise have the ability to vote on or consent with respect to under the Act, at
law, in equity or otherwise. The conduct, control and management of the Partnership shall be vested
exclusively in the General Partner. In all matters relating to or arising out of the conduct of the
operation of the Partnership, the decision of the 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 or control of
the operation or business of the Partnership in its capacity






13









 







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 from time
to time appoint one or more Partners as officers or employ one or more Partners as employees, and
such Partners, in their capacity as officers or employees of the Partnership (and not, for clarity,
in their capacity as Limited Partners of the Partnership), may take part in the control 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 the 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 consent or ratification in writing.




ARTICLE IV




DISTRIBUTIONS



          SECTION 4.01. Distributions. (a) The 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 Total Percentage Interests.




          (b) (i) In addition to the foregoing, if the General Partner reasonably determines that the
taxable income of the Partnership for a Fiscal Year will give rise to taxable income for the
Partners (“Net Taxable Income”), the General Partner shall cause the Partnership to
distribute Available Cash in respect of income tax liabilities (the “Tax Distributions”) to
the extent that other distributions made by the Partnership for such year were otherwise
insufficient to cover such tax liabilities. The Tax Distributions payable with respect to any
Fiscal Year shall be computed based upon the General Partner’s estimate of the allocable Net
Taxable Income in accordance with Article V, multiplied by the Assumed Tax Rate (the “Tax
Amount”). For purposes of computing the Tax Amount, the effect of any benefit under Section
743(b) of the Code will be ignored.





     (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, the 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



14









 







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 tax return on
Form 1065, the 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
9.03.




          SECTION 4.03. Limitations on Distribution. Notwithstanding any provision to the contrary contained in this Agreement, the General
Partner shall not make a Partnership distribution to any Partner if such distribution would violate
Article 2242 of the Civil Code or any other applicable provision of the Act or other applicable
Law.




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 issuance by the Partnership of Class A Units to the Partners and the admission of
such Partners to the Partnership, the partnership interests in the Partnership as provided in this
Agreement and under the Act held by Carlyle Holdings II Limited Partner L.L.C. will be cancelled
and Carlyle Holdings II Limited Partner L.L.C. will withdraw as a limited partner of the
Partnership.




          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 the
General Partner.





15









 








          SECTION 5.03. Capital Accounts. A separate capital account (a “Capital Account”) shall be established and
maintained for each Partner in accordance with the provisions of
Treasury Regulations Section 1.704-1(b)(2)(iv). 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.




          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. For purposes of this Article V, each Unvested Unit shall be treated as
a Vested Unit. Notwithstanding the foregoing, the 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).




          (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)



16









 






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 Total 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) hereof 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 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



17









 






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 Sections 704(b) and (c) of the Code (in any manner determined by the
General Partner and permitted by the Code and Treasury Regulations) so as to take account of the
difference between Carrying Value and adjusted basis of such asset; provided further that
the Partnership shall use the traditional method with curative allocations (as provided in Treasury
Regulations Section 1.704-3(c)) for all Section 704(c) allocations, limited to allocations of
income or gain from the disposition of Partnership property where allocations of depreciation
deductions have been limited by the ceiling rule throughout the term of the Partnership).
Notwithstanding the foregoing, the General Partner shall make such allocations for tax purposes 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 5.07. Tax Advances. To the extent the 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”), the 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 other than any 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 but only
to the extent amounts sufficient to pay such taxes were not timely distributed to the Partner
pursuant to Section 4.01(b)) with respect to income attributable to or distributions or other
payments to such Partner.




          SECTION 5.08. Tax Matters. The General Partner 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



18









 







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 Allocation Provisions. Certain of the foregoing provisions and the other provisions of this Agreement relating to
the maintenance of Capital Accounts are intended to comply with Treasury Regulations Section
1.704-1(b) and shall be interpreted and applied in a manner consistent with such regulations. In
addition to amendments effected in accordance with Section 11.12 or otherwise in accordance with
this Agreement, Sections 5.03, 5.04 and 5.05 may also, so long as any such amendment does not
materially change the relative economic interests of the Partners, be amended at any time by the
General Partner if necessary, in the opinion of tax counsel to the Partnership, to comply with such
regulations or any applicable Law.




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




     (ii) promptly after their becoming available, copies of the Partnership’s
federal income tax returns for the three most recent years.



          (c) The General Partner may keep confidential from the Limited Partners, for such period of
time as the General Partner determines in its sole discretion, (i) any information that the General
Partner reasonably believes to be in the nature of trade secrets or (ii) other information the
disclosure of which the General Partner believes 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 Partner in its sole discretion may establish
and issue, from time to time in accordance with such procedures as the




19









 








General Partner shall
determine from time to time, additional Units, in one or more Classes or series of Units, or other
Partnership securities, at such price, and with such designations, preferences and relative,
participating, optional or other special rights, powers and duties (which
may be senior to existing Units, Classes and series of Units or other Partnership securities),
as shall be determined by the General Partner without the approval of any Partner or any other
Person who may acquire an interest in any of the Units, including (i) the right of such Units to
share in Profits and Losses or items thereof; (ii) the right of such Units to share in Partnership
distributions; (iii) the rights of such Units 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 such Units (including sinking fund provisions); (v) whether such Units are 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 such Units will be issued, evidenced by
certificates and assigned or transferred; (vii) the method for determining the Total Percentage
Interest as to such Units; (viii) the terms and conditions of the issuance of such Units
(including, without limitation, the amount and form of consideration, if any, to be received by the
Partnership in respect thereof, the General Partner being expressly authorized, in its sole
discretion, to cause the Partnership to issue such Units for less than fair market value); and (ix)
the right, if any, of the holder of such Units to vote on Partnership matters, including matters
relating to the relative designations, preferences, rights, powers and duties of such Units. The
General Partner in its sole discretion, without the approval of any Partner or any other Person, is
authorized (i) to issue Units or other Partnership securities of any newly established Class or any
existing Class to Partners or other Persons who may acquire an interest in the Partnership and (ii)
to amend this Agreement to reflect the creation of any such new Class, the issuance of Units or
other Partnership securities of such Class, and the admission of any Person as a Partner which has
received 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 Units of any other Class
or series 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. The register of the Partnership shall be the definitive record of ownership of each Unit
and all relevant information with respect to each Partner. Such register shall be kept at its
place of principal establishment of partnership and the General Partner shall make changes to the
register of the Partnership to reflect any change in relation thereto, such register remaining the
definite record of ownership of each Unit and all relevant information with respect to each
Partner. Unless the 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.




20









 








ARTICLE VIII




VESTING; FORFEITURE OF INTERESTS; TRANSFER RESTRICTIONS



          SECTION 8.01. Vesting of Unvested Units. (a) Unvested Units shall vest and shall thereafter be Vested Units for all purposes of this
Agreement as agreed to in writing between
the General Partner and the applicable Limited Partner and reflected in the books and records
of the Partnership.




          (b) The General Partner in its sole discretion may authorize the earlier vesting of all or a
portion of Unvested Units owned by any one or more Limited Partners at any time and from time to
time, and in such event, such Unvested Units shall vest and thereafter be Vested Units for all
purposes of this Agreement. Any such determination in the General Partner’s discretion in respect
of Unvested Units shall be final and binding. Such determinations need not be uniform and may be
made selectively among Limited Partners, whether or not such Limited Partners are similarly
situated, and shall not constitute the breach of any duty hereunder or otherwise existing at law,
in equity or otherwise.




          (c) Upon the vesting of any Unvested Units in accordance with this Section 8.01, the General
Partner shall modify the books and records of the Partnership to reflect such vesting.




          SECTION 8.02. Forfeiture of Units. (a) Except as otherwise agreed to in writing between the General Partner and the applicable
Person and reflected in the books and records of the Partnership, if a Person that is a Service
Provider ceases to be a Service Provider for any reason, all Unvested Units held by such Person (or
any Personal Planning Vehicle of such Person), and/or in which such Person (or any Personal
Planning Vehicle of such Person) has an indirect interest, as set forth in the books and records of
the Partnership, shall be immediately forfeited without any consideration, and any such Person (or
any such Personal Planning Vehicle) shall cease to own or have any rights, directly or indirectly,
with respect to such forfeited Unvested Units.




          (b) Except as otherwise agreed to in writing between the General Partner and the applicable
Person and reflected in the books and records of the Partnership, if the General Partner determines
in good faith that Cause exists with respect to any Person that is or was at any time a Service
Provider, the Units (whether or not vested) held by such Person (or any Personal Planning Vehicle
of such Person), and/or in which such Person (or any Personal Planning Vehicle of such Person) has
an indirect interest, as set forth in the books and records of the Partnership, shall be
immediately forfeited without any consideration, and any such Person (or any such Personal Planning
Vehicle) shall cease to own or have any rights, directly or indirectly, with respect to such
forfeited Units. Such determinations need not be uniform and may be made selectively among such
Persons, whether or not such Persons are similarly situated, and shall not constitute the breach by
the General Partner or any of its directors, managers, officers or members of any duty (including
any fiduciary duty) hereunder or otherwise existing at law, in equity or otherwise.




          (c) Notwithstanding anything otherwise to the contrary herein, including without limitation
Section 9.06 and Section 10.01, if any Person who is or was at any time a Service Provider shall
fail to perform when due any “giveback,” “true-up” or “clawback” obligation owed by such Person to
the Partnership or any of its Affiliates or to any fund sponsored by the




21









 








Partnership or any of its
Affiliates, the General Partner may in its sole discretion and without the consent of any other
Person, cause to be forfeited a number of Units held by such Person (or any Personal Planning
Vehicle of such Person), and/or in which such Person (or any Personal Planning Vehicle of such
Person) has an indirect interest, as set forth in the books and records of the Partnership,
equivalent in value to the obligation which was not performed, as determined by the General Partner
in its sole discretion. Such determinations need not be uniform and may be made
selectively among such Persons, whether or not such Persons are similarly situated, and shall
not constitute the breach by the General Partner or any of its directors, managers, officers or
members of any duty (including any fiduciary duty) hereunder or otherwise existing at law, in
equity or otherwise.




          (d) Upon the forfeiture of any Units in accordance with this Section 8.02, such Units shall be
cancelled and the General Partner shall modify the books and records of the Partnership to reflect
such forfeiture and cancellation.




          SECTION 8.03. Limited Partner Transfers. (a) Except as otherwise agreed to in writing between the General Partner and the applicable
Limited Partner and reflected in the books and records of the Partnership, no Limited Partner or
Assignee thereof may Transfer (including pursuant to an Exchange Transaction) all or any portion of
its Units or other interest in the Partnership (or beneficial interest therein) without the prior
consent of the General Partner, which consent may be given or withheld, or made subject to such
conditions (including, without limitation, the receipt of such legal opinions and other documents
that the General Partner may require) as are determined by the General Partner, in each case in the
General Partner’s sole discretion, and which consent may be in the form of a plan or program
entered into or approved by the General Partner, in its sole discretion. Any such determination in
the General Partner’s discretion in respect of Units shall be final and binding. Such
determinations need not be uniform and may be made selectively among Limited Partners, whether or
not such Limited Partners are similarly situated, and shall not constitute the breach of any duty
hereunder or otherwise existing at law, in equity or otherwise. Any purported Transfer of Units
that is not in accordance with, or subsequently violates, this Agreement shall be, to the fullest
extent permitted by law, null and void.




          (b) Notwithstanding anything otherwise to the contrary in this Section 8.03, from and after
the fifth anniversary of the date hereof, each Limited Partner may Transfer Units in Exchange
Transactions pursuant to, and in accordance with, the Exchange Agreement; provided that such
Exchange Transactions shall be effected in compliance with policies that the General Partner may
adopt or promulgate from time to time (including policies requiring the use of designated
administrators or brokers).




          (c) The
parties hereto agree that the Units held by CalPERS shall not be subject to the
restrictions on Transfer set forth in paragraph (a) above. The
parties hereto agree that the Units held by the Mubadala
Holders shall not be subject to the restrictions on Transfer set forth in paragraph (a) above, and
shall be subject to such restrictions agreed to in writing by the Mubadala Holders in one or more separate agreements.




22









 





          (d) Notwithstanding anything otherwise to the contrary in this Section 8.03, a Personal
Planning Vehicle of a Limited Partner may Transfer Units: (i) to the donor thereof; (ii) if the
Personal Planning Vehicle is a grantor retained annuity trust and the trustee(s) of such grantor
retained annuity trust is obligated to make one or more distributions to the donor of the grantor
retained annuity trust, the estate of the donor of the grantor retained annuity trust, the
spouse of the donor of the grantor retained annuity trust or the estate of the spouse of the donor
of the grantor retained annuity trust, to any such Persons; or (iii) upon the death of such Limited
Partner, to the spouse of such Limited Partner or a trust for which a deduction under Section 2056
or 2056A (or any successor provisions) of the Code may be sought.




          SECTION 8.04. Mandatory Exchanges. The General Partner may in its sole discretion at any time and from time to time, without
the consent of any Limited Partner or other Person, cause to be Transferred in an Exchange
Transaction any and all Units, except for Units held by (x) CalPERS, (y) any Mubadala Holder, or
(z) any Person that is a Service Provider at the time in question and/or in which a Person that is
a Service Provider at the time in question has an indirect interest as set forth in the books and
records of the Partnership. Any such determinations by the General Partner need not be uniform and
may be made selectively among Limited Partners, whether or not such Limited Partners are similarly
situated. In addition, the General Partner may, with the consent of Partners whose Vested
Percentage Interests exceed 75% of the Vested Percentage Interests of all Partners in the
aggregate, require all Limited Partners (except for CalPERS and the Mubadala Holders) to Transfer
in an Exchange Transaction all Units held by them.




          SECTION 8.05. Encumbrances. 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 the General Partner consents in writing thereto, which consent may be given
or withheld, or made subject to such conditions as are determined by the General Partner, in the
General Partner’s sole discretion. Consent of the General Partner shall be withheld until the
holder of the Encumbrance acknowledges the 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 8.06. Further Restrictions. (a) Notwithstanding any contrary provision in this Agreement, the General Partner may impose
such vesting requirements, forfeiture provisions, Transfer restrictions, minimum retained ownership
requirements or other similar provisions with respect to any Units that are outstanding as of the
date of this Agreement or are created thereafter, with the written consent of the holder of such
Units. Such requirements, provisions and restrictions need not be uniform and may be waived or
released by the General Partner in its sole discretion with respect to all or a portion of the
Units owned by any one or more Limited Partners at any time and from time to time, and shall not
constitute the breach of any duty hereunder or otherwise existing at law, in equity or otherwise.




          (b) 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:





23









 









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




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




     (iii) 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) the General Partner to become a fiduciary with respect to
any existing or contemplated Limited Partner, pursuant to ERISA, any applicable
Similar Law, or otherwise;




     (iv) to the extent requested by the General Partner, the Partnership does
not receive such legal and/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 the General Partner, as determined in the General Partner’s sole
discretion; provided, however, that any requirement to provide legal and/or tax
opinions pursuant to this clause (iv) shall not apply to CalPERS or the Mubadala
Holders; or




     (v) the General Partner shall determine in its sole discretion that such
Transfer would pose a material risk that the Partnership would be a “publicly
traded partnership” as defined in Section 7704 of the Code.



          In addition, notwithstanding any contrary provision in this Agreement, to the extent the
General Partner shall determine that interests in the Partnership do not meet the requirements of
Treasury Regulation section 1.7704-1(h), the General Partner may impose such restrictions on the
Transfer of Units or other interests in the Partnership as the General Partner may determine in its
sole discretion to be necessary or advisable so that the Partnership is not treated as a publicly
traded partnership taxable as a corporation under Section 7704 of the Code.




          (c) Any Transfer in violation of this Article VIII shall be deemed null and void ab initio and
of no effect.




          SECTION 8.07. Rights of Assignees. Subject to Section 8.06(b), the Transferee of any permitted Transfer pursuant to this
Article VIII 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




24









 








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 8.09.




          SECTION 8.08. Admissions, Withdrawals and Removals. (a) No Person may be admitted to the Partnership as an additional General Partner or
substitute General Partner without
the prior written consent of each incumbent General Partner, which consent may be given or
withheld, or made subject to such conditions as are determined by each incumbent General Partner,
in each case in the sole discretion of each incumbent General Partner. 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).




          (b) No Limited Partner will be removed or entitled to withdraw from being a Partner of the
Partnership except in accordance with Section 8.10 hereof. Any additional General Partner or
substitute General Partner admitted as a general partner of the Partnership pursuant to this
Section 8.08 is hereby authorized to, and shall, continue the Partnership without dissolution.




          (c) Except as otherwise provided in Article IX 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 8.09. 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) the 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 the General
Partner, in each case in the General Partner’s sole discretion;




     (b) if required by the General Partner, the 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 the General Partner (as determined in its sole discretion);




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




     (d) if required by the 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 8.10. Withdrawal and Removal of Limited Partners. Subject to Section 8.07, if a Limited Partner ceases to hold any Units, including as a
result of a forfeiture of Units pursuant to Section 8.02, then such Limited Partner shall cease to
be a Limited Partner and to have




25









 








the power to exercise any rights or powers of a Limited Partner,
and shall be deemed to have withdrawn from the Partnership.




          SECTION 8.11. No Solicitation. Each Limited Partner that is a Service Provider agrees, and each Limited Partner that holds
Units in which a Service Provider has an indirect interest, as set forth in the books and records
of the Partnership agrees on behalf of such Service Provider, that for so long as such Person is a
Service Provider and for a period of one year after the
effective date on which such Person ceases to be a Service Provider for any reason (such
period, the “Restrictive Covenant Period”), such former Service Provider shall not,
directly or indirectly, whether alone or in concert with other Persons:





     (a) solicit any Person that is a Service Provider at the time in question, to abandon
such employment;




     (b) hire a Person who is, or within the prior year was, a Service Provider; or




     (c) solicit any Person (or any Affiliate of such Person) which is a subscribing
investor in, or a partner or member of, any fund or vehicle advised or to be advised by the
Partnership or any Affiliate thereof of, or with which the Partnership or any Affiliate
thereof has arrangements relating to the payment of management fees, incentive fees or
carried interest, for the purpose of obtaining funds (whether debt or equity) or inducing
such Person to make an investment (whether debt or equity) which is sponsored or promoted
by such former Service Provider (or by any Affiliate or employer of such former Service
Provider).



          SECTION 8.12. Minimum Retained Ownership Requirement. Unless otherwise permitted by the General Partner in its sole discretion, (i) each Limited
Partner that is or was at any time a Service Provider shall, until the expiration of the
Restrictive Covenant Period applicable to such Service Provider, continue to hold (and may not
Transfer) at least 25% of all Vested Units received collectively by such Limited Partner and by any
Personal Planning Vehicle of such Limited Partner; and (ii) each Limited Partner that holds Units
in which a Person that is or was at any time a Service Provider has an indirect interest, as set
forth in the books and records of the Partnership, shall, until the expiration of the Restrictive
Covenant Period applicable to such Service Provider, continue to hold (and may not Transfer) at
least 25% of all Vested Units received collectively by such Limited Partner in which such Person
(or any Personal Planning Vehicle of such Person) has an indirect interest, as set forth in the
books and records of the Partnership (clauses (i) and (ii) above, as applicable, the “Minimum
Retained Ownership Requirement”). For purposes of this Section 8.12, unless the General
Partner shall otherwise determine in its sole discretion, (x) Units received by a Personal Planning
Vehicle of a Limited Partner shall be deemed held by such Limited Partner for purposes of
calculating the number of Vested Units received by such Limited Partner and (y) Units received by a
Personal Planning Vehicle of a Limited Partner shall not be deemed to be held by such Limited
Partner for purposes of calculating whether the relevant percentage of Vested Units held satisfies
the Minimum Retained Ownership Requirement. The General Partner may in its sole discretion resolve
any question regarding the satisfaction of the Minimum Retained Ownership Requirement or the
application of the provisions of this 8.12, including the calculation of Units received and Units
held with respect to Service Providers that hold direct and indirect interests in Units. Any such
determination in the General Partner’s




26









 








discretion shall be final and binding. Such determinations
need not be uniform and may be made selectively among Persons, whether or not such Persons are
similarly situated, and shall not constitute the breach of any duty hereunder or otherwise existing
at law, in equity or otherwise.




ARTICLE IX




DISSOLUTION, LIQUIDATION AND TERMINATION



          SECTION 9.01. 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 IX, and the Partners 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 9.02. 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 rendering of a judicial judgment ordering the dissolution of the Partnership
under the Act upon the finding by a court of competent jurisdiction that it is not
reasonably practicable to carry on the business of the Partnership in conformity with this
Agreement;




     (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) at any time there are no limited partners, unless the Partnership is continued in
accordance with the Act;




     (e) the Incapacity or removal of the General Partner; 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 9.02(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 Partner to cease to be a general partner of the
Partnership, within 120 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 Vested Units then outstanding agree in writing to so continue the business of the
Partnership; or




     (f) the determination of the General Partner in its sole discretion; provided
that in the event of a dissolution pursuant to this clause (f), the relative economic
rights of each Class of Units immediately prior to such dissolution shall be preserved to
the greatest



27









 






extent practicable with respect to distributions made to Partners pursuant to
Section 9.03 below in connection with the winding up of the Partnership, taking into
consideration tax and other legal constraints that may adversely affect one or more parties
hereto and subject to compliance with applicable laws and regulations, unless, and to the
extent that, with
respect to any Class of Units, holders of not less than 90% of the Units of such Class
consent in writing to a treatment other than as described above.



          SECTION 9.03. 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,
the General Partner, or any other Person designated by the General Partner (the “Liquidation
Agent”), shall take full account of the assets and liabilities of the Partnership and shall,
unless the 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/or their Affiliates to the extent
otherwise 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 9.03; and




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



          SECTION 9.04. 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 9.05. 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 IX, and the relevant
declaration has been filed under the Act.




          SECTION 9.06. 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



28









 







the Partnership, upon dissolution or
termination of the Partnership or otherwise, except to the extent required by the Act.




          SECTION 9.07. Survival of Certain Provisions. Notwithstanding anything to the contrary in this Agreement, the provisions of Sections
10.02, 11.09 and 11.10 shall survive the termination of the Partnership.




ARTICLE X




LIABILITY AND INDEMNIFICATION



          SECTION 10.01. Liability of Partners.




          (a) No Limited Partner and no Affiliate, manager, member, employee or agent of a 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.




          (b) This Agreement is not intended to, and does not, create or impose any duty (including any
fiduciary duty) on any of the Partners (including without limitation, the General Partner) hereto
or on their respective Affiliates. Further, the Partners hereby waive any and all duties
(including fiduciary duties) that, absent such waiver, may exist at or be implied by Law or in
equity, 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, at law or in equity, any Partner (including without limitation, the
General Partner) has duties (including fiduciary duties) and liabilities relating thereto to the
Partnership, to another Partner or to another Person who is a party to or is otherwise bound by
this Agreement, the Partners (including without limitation, the General Partner) acting under this
Agreement will not be liable to the Partnership, to any such other Partner or to any such other
Person who is a party to or is otherwise bound by this Agreement, 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 Partner) otherwise existing at law or in equity, 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 Partner).




          (d) The General Partner may consult with legal counsel, accountants and financial or other
advisors and any act or omission suffered or taken by the General Partner 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 Partner 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 or equity, whenever in this Agreement the General Partner is permitted or required




29









 








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 10.02. Indemnification.




          (a) Indemnification. To the fullest extent permitted by law, as the same exists or
hereafter be amended (but in the case of any such amendment, only to the extent that such amendment
permits the Partnership to provide broader indemnification rights than such law permitted the
Partnership to provide prior to such amendment), the Partnership shall indemnify any Indemnitee 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 or proceeding (brought in the right of the Partnership or
otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether
formal or informal, including appeals, by reason of his or her or its status as an Indemnitee or by
reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such
capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in
connection with such action, suit or proceeding, including appeals; provided that such Indemnitee
shall not be entitled to indemnification hereunder if, but only to the extent that, such
Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the
preceding sentence, except as otherwise provided in Section 10.02(c), the Partnership shall be
required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part
thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or
proceeding (or part thereof) by such Indemnitee was authorized by the General Partner and (ii) by
or in the right of the Partnership only if the General Partner has provided its prior written
consent. The indemnification of an Indemnitee of the type identified in clause (d) of the
definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee
is entitled from (x) the relevant other Person (including any payment made to such Indemnitee under
any insurance policy issued to or for the benefit of such Person or Indemnitee), and (y) the
relevant Fund (if applicable) (including any payment made to such Indemnitee under any insurance
policy issued to or for the benefit of such Fund or the Indemnitee) (clauses (x) and (y) together,
the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is
not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance
policy). No such Person or Fund shall be entitled to contribution or indemnification from or
subrogation against the Partnership. The indemnification of any other Indemnitiee shall, to the
extent not in conflict with such policy, be secondary to any and all payment to which such
Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the
Partnership or any Indemnitee. “Fund” means any fund, investment vehicle or account whose
investments are managed or advised by the Issuer (if any) or its affiliates.




          (b) Advancement of Expenses. To the fullest extent permitted by law, the Partnership shall promptly pay expenses
(including attorneys’ fees) incurred by any Indemnitee in appearing at, participating in or
defending any action, suit or proceeding in advance of the final




30









 








disposition of such action, suit
or proceeding, including appeals, upon presentation of an undertaking on behalf of such Indemnitee
to repay such amount if it shall ultimately be determined
that such Indemnitee is not entitled to be indemnified under this Section 10.02 or otherwise.
Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the
Partnership shall be required to pay expenses of an Indemnitee in connection with any action, suit
or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such
action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the General
Partner and (ii) by or in the right of the Partnership only if the General Partner has provided its
prior written consent.




          (c) Unpaid Claims. If a claim for indemnification (following the final disposition of such action, suit or
proceeding) or advancement of expenses under this Section 10.02 is not paid in full within 30 days
after a written claim therefor by any Indemnitee has been received by the Partnership, such
Indemnitee 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 Indemnitee is not entitled to the
requested indemnification or advancement of expenses under applicable Law.




          (d) Insurance. (i) To the fullest extent permitted by law, the Partnership may purchase and maintain
insurance on behalf of any person described in Section 10.02(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 10.02 or otherwise.




                    (ii) In the event of any payment by the Partnership under this Section 10.02, the Partnership
shall be subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee from any relevant other Person or under any insurance policy issued to or for the
benefit of the Partnership, such relevant other Person, or any Indemnitee. Each Indemnitee agrees
to execute all papers required and take all action necessary to secure such rights, including the
execution of such documents as are necessary to enable the Partnership to bring suit to enforce any
such rights in accordance with the terms of such insurance policy or other relevant document. The
Partnership shall pay or reimburse all expenses actually and reasonably incurred by the Indemnitee
in connection with such subrogation.



                    (iii) The Partnership shall not be liable under this Section 10.02 to make any payment of
amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and
amounts paid in settlement, and excise taxes with respect to an employee benefit plan or penalties)
if and to the extent that the applicable Indemnitee has otherwise actually received such payment
under this Section 10.02 or any insurance policy, contract, agreement or otherwise.



          (e) Non-Exclusivity of Rights. The provisions of this Section 10.02 shall be applicable to all actions, claims, suits or
proceedings made or commenced after the date of this Agreement, whether arising from acts or
omissions to act occurring before or after its adoption. The provisions of this Section 10.02
shall be deemed to be a contract between the Partnership and each person entitled to
indemnification under this Section 10.02 (or legal representative thereof) who serves in such
capacity at any time while this Section 10.02 and the relevant provisions of




31









 








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 or
proceeding then or theretofore existing, or any action, suit or proceeding thereafter brought
or threatened based in whole or in part on any such state of facts. If any provision of this
Section 10.02 shall be found to be invalid or limited in application by reason of any law or
regulation, it shall not affect the validity of the remaining provisions hereof. The rights of
indemnification provided in this Section 10.02 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 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
10.02(a) shall be made to the fullest extent permitted by law.




          For purposes of this Section 10.02, 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.




          This Section 10.02 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 10.02(a).




ARTICLE XI




MISCELLANEOUS



          SECTION 11.01. 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 11.02. 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 (delivery receipt requested), by fax, by electronic mail 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 11.02):




          (a) If to the Partnership, to:



Carlyle Holdings II L.P.

c/o Carlyle Holdings II GP L.L.C.




32









 







1001 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Attention: General Counsel

Fax: (202) 729-5266

Electronic Mail: list_carlyleholdingsnotice@carlyle.com




          (b) If to any Partner, to:



c/o Carlyle Holdings II GP L.L.C.

1001 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Attention: General Counsel

Fax: (202) 729-5266

Electronic Mail: list_carlyleholdingsnotice@carlyle.com



Carlyle Holdings II GP L.L.C. shall use commercially reasonable efforts to forward any such
communication to the applicable Partner’s address, email address or facsimile number as shown in
the Partnership’s books and records.




          (c) If to the General Partner, to:



Carlyle Holdings II GP L.L.C.

1001 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Attention: General Counsel

Fax: (202) 729-5266

Electronic Mail: list_carlyleholdingsnotice@carlyle.com




          SECTION 11.03. 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 11.04. 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 11.05. Interpretation. Throughout this Agreement, nouns, pronouns and verbs shall be construed as masculine,
feminine, neuter, singular or plural, whichever shall be applicable. Unless otherwise specified,
all references herein to “Articles,” “Sections” and paragraphs shall refer to corresponding
provisions of this Agreement.




          Each party hereto acknowledges and agrees that the parties hereto have participated
collectively in the negotiation and drafting of this Agreement and that he or she or it has had the
opportunity to draft, review and edit the language of this Agreement; accordingly, it is the
intention of the parties that no presumption for or against any party arising out of drafting all
or any part of






33









 







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 11.06. 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 11.06.




          SECTION 11.07. 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 11.08. 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 11.09. Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the
Province of Québec.




          SECTION 11.10. Dispute Resolution.




          (a) The Partnership, and, except for CalPERS and each of the Mubadala Holders, each Partner,
each other Person who acquires a Unit or other interest in the Partnership and each other Person
who is bound by this Agreement (collectively, the “Consenting Parties” and each a “Consenting
Party”) (i) irrevocably agrees that, unless the General Partner shall otherwise agree in writing,
any claims, suits, actions or proceedings arising out of or relating in any way to this Agreement
or any interest in the Partnership (including, without limitation, any claims, suits or actions
under or to interpret, apply or enforce (A) the provisions of this Agreement, including without
limitation the validity, scope or enforceability of this Section 11.10(a) or the arbitrability of
any Dispute (as defined below), (B) the duties, obligations or liabilities of the Partnership to
the Partners, or of the Partners to the Partnership, or among Partners, (C) the rights or powers
of, or restrictions on, the Partnership, or any Partner, (D) any provision of the Act or other
similar applicable statutes, (E) any other instrument, document, agreement or certificate
contemplated either by any provision of the Act relating to the Partnership or by this Agreement or
(F) the federal securities laws of the United States or the securities or antifraud laws of any
international, national, state, provincial, territorial, local or other governmental or regulatory
authority, including, in each case, the applicable rules and regulations promulgated thereunder
(regardless of whether such Disputes (x) sound in contract, tort, fraud or otherwise, (y) are based
on common law, statutory, equitable, legal or other grounds, or (z) are derivative or direct
claims)) (a “Dispute”) shall be finally settled by arbitration conducted by three arbitrators (or,
in the event the amount of quantified claims and/or estimated monetary value of other claims
contained in the applicable request for arbitration is less than $3.0 million, by a sole
arbitrator) in Wilmington, Delaware in accordance with the Rules of Arbitration of the
International Chamber of Commerce (including the






34









 







rules relating to costs and fees) existing on the date of this Agreement except to the extent
those rules are inconsistent with the terms of this Section 11.10, and that such arbitration shall
be the exclusive manner pursuant to which any Dispute shall be resolved; (ii) agrees that this
Agreement involves commerce and is governed by any applicable treaties governing the recognition
and enforcement of international arbitration agreements and awards; (iii) agrees to take all steps
necessary or advisable, including the execution of documents to be filed with the International
Court of Arbitration or the International Centre for ADR in order to properly submit any Dispute
for arbitration pursuant to this Section 11.10; (iv) irrevocably waives, to the fullest extent
permitted by law, any objection it may have or hereafter have to the submission of any Dispute for
arbitration pursuant to this Section 11.10 and any right to lay claim to jurisdiction in any venue;
(v) agrees that (A) the arbitrator(s) shall be U.S. lawyers, U.S. law professors and/or retired
U.S. judges and all arbitrators, including the president of the arbitral tribunal, may be U.S.
nationals and (B) the arbitrator(s) shall conduct the proceedings in the English language; (vi)
agrees that except as required by law (including any disclosure requirement to which the
Partnership may be subject under any securities law, rule or regulation or applicable securities
exchange rule or requirement) 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; (vii) irrevocably agrees
that, unless the General Partner and the relevant named party or parties shall otherwise mutually
agree in writing, (A) the arbitrator(s) may award declaratory or injunctive relief only in favor of
the individual party seeking relief and only to the extent necessary to provide relief warranted by
that party’s individual claim, (B) SUCH CONSENTING PARTY MAY BRING CLAIMS ONLY IN ITS INDIVIDUAL
CAPACITY, AND NOT AS A PLAINTIFF, CLASS REPRESENTATIVE OR CLASS MEMBER, OR AS A PRIVATE ATTORNEY
GENERAL, IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, and (C) the arbitrator(s) may not
consolidate more than one person’s claims, and shall not have authority otherwise to preside over
any form of a representative or class or consolidated proceeding or entertain any claim on behalf
of a person who is not a named party, nor shall any arbitrator have authority to make any award for
the benefit of, or against, any person who is not a named party; and (viii) agrees that if a
Dispute that would be arbitrable under this Agreement if brought against a Consenting Party is
brought against an employee, officer, director, agent or indemnitee of such Consenting Party or its
Affiliates (other than Disputes brought by the employer or principal of any such employee, officer,
director, agent or indemnitee) for alleged actions or omissions of such employee, officer,
director, agent or indemnitee undertaken as an employee, officer, director, agent or indemnitee of
such Consenting Party or its Affiliates, such employee, officer, director, agent or indemnitee
shall be entitled to invoke this arbitration agreement. Notwithstanding Section 11.01, each
provision of this Section 11.10(a) shall be deemed material, and shall not be severable and this
Section 11.10(a) shall be enforced only in its entirety. Performance under this Agreement shall
continue if reasonably possible during any arbitration proceedings.




          (b) Notwithstanding the provisions of paragraph (a), any Consenting Party may bring an action
or special proceeding 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 Consenting Party (i) irrevocably agrees that, unless






35









 







the General Partner consents in writing to the selection of an alternative forum, any such
action or special proceeding shall be exclusively brought in the Court of Chancery of the State of
Delaware or, if such court does not have subject matter jurisdiction thereof, any other court
located in the State of Delaware with subject matter jurisdiction; (ii) irrevocably submits to the
exclusive jurisdiction of such courts in connection with any such action or special proceeding;
(iii) irrevocably agrees not to, and waives any right to, assert in any such action or special
proceeding that (A) it is not personally subject to the jurisdiction of such courts or any other
court to which proceedings in such courts may be appealed, (B) such action or special proceeding is
brought in an inconvenient forum, or (C) the venue of such action or special proceeding is
improper; (iv) expressly waives any requirement for the posting of a bond by a party bringing such
action or special proceeding; (v) consents to process being served in any such action or special
proceeding by mailing, certified mail, return receipt requested, a copy thereof to such party at
the address in effect for notices hereunder, and agrees that such service shall constitute good and
sufficient service of process and notice thereof; provided that nothing in clause (v) hereof shall
affect or limit any right to serve process in any other manner permitted by law; (VI) IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUCH CLAIM, SUIT, ACTION OR PROCEEDING; and (vii)
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.




          (c) If the arbitrator(s) shall determine that any Dispute is not subject to arbitration, or
the arbitrator(s) or any court or tribunal of competent jurisdiction shall refuse to enforce any
provision of Section 11.10(a) or shall determine that any Dispute is not subject to arbitration as
contemplated thereby, then, and only then, shall the alternative provisions of this Section
11.10(c) be applicable. Each Consenting Party, to the fullest extent permitted by law, (i)
irrevocably agrees that unless the General Partner consents in writing to the selection of an
alternative forum, any Dispute shall be exclusively brought in the Court of Chancery of the State
of Delaware or, if such court does not have subject matter jurisdiction thereof, any other court
located in the State of Delaware with subject matter jurisdiction over such Dispute; (ii)
irrevocably submits to the exclusive jurisdiction of such courts in connection with any such claim,
suit, action or proceeding; (iii) irrevocably agrees not to, and waives any right to, assert in any
such claim, suit, action or proceeding that (A) it is not personally subject to the jurisdiction of
such courts or any other court to which proceedings in such courts may be appealed, (B) such claim,
suit, action or proceeding is brought in an inconvenient forum, or (C) the venue of such claim,
suit, action or proceeding is improper; (iv) expressly waives any requirement for the posting of a
bond by a party bringing such claim, suit, action or proceeding; (v) consents to process being
served in any such claim, suit, action or proceeding by mailing, certified mail, return receipt
requested, a copy thereof to such party at the address in effect for notices hereunder, and agrees
that such service shall constitute good and sufficient service of process and notice thereof;
provided that nothing in clause (v) hereof shall affect or limit any right to serve process in any
other manner permitted by law; and (VI) IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY SUCH CLAIM, SUIT, ACTION OR PROCEEDING; AND (vii) 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. The parties acknowledge that the fora designated by this
paragraph (c) have a reasonable relation to this Agreement, and to the parties’ relationship with
one another.







36









 








          SECTION 11.11. 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 11.12. Amendments and Waivers. (a) This Agreement (including the Annexes hereto) may be amended, supplemented, waived or
modified by the General Partner in its sole discretion without the approval of any Limited Partner
or other Person; provided that no amendment may (i) materially and adversely affect the
rights of a holder of Units, as such, other than on a pro rata basis with other holders of Units of
the same Class without the consent of such holder (or, if there is more than one such holder that
is so affected, without the consent of a majority in interest of such affected holders in
accordance with their holdings of such Class of Units), (ii) materially and adversely affect the
rights of a Mubadala Holder without the prior written consent of such Mubadala Holder, or (iii)
materially and adversely affect the rights of CalPERS without the prior written consent of CalPERS;
provided further, however, that notwithstanding the foregoing, the General Partner
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 Partner determines to be necessary
or appropriate in connection with the creation, authorization or issuance of Units or any Class or
series of equity interest in the Partnership pursuant to Section 7.01 hereof; (ii) the admission,
substitution, withdrawal or removal of Partners in accordance with this Agreement, including
pursuant to Section 7.01 hereof; (iii) a change in the name of the Partnership, the location of the
principal place of business of the Partnership, the registered agent of the Partnership or the
registered office of the Partnership; (iv) any amendment, supplement, waiver or modification that
the General Partner determines in its sole discretion to be necessary or appropriate to address
changes in U.S. federal income tax regulations, legislation or interpretation; and/or (v) a change
in the Fiscal Year or taxable year of the Partnership and any other changes that the General
Partner determines to be necessary or appropriate as a result of a change 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. If an amendment has been approved in accordance with this agreement, such
amendment shall be adopted and effective with respect to all Partners. Upon obtaining such
approvals as may be required by this Agreement, and without further action or execution on the part
of any other Partner or other Person, any amendment to this Agreement may be implemented and
reflected in a writing executed solely by the General Partner and the Limited Partners shall be
deemed a party to and bound by such amendment.




          (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 Partner may, in its 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 (or interest in an entity treated as a partnership






37









 







for U.S. federal income tax purposes) 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 Internal Revenue Service with respect to such election) with respect
to all partnership interests (or interest in an entity treated as a partnership for U.S. federal
income tax purposes) 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 11.13. 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 10.02
hereof); provided, however that each employee, officer, director, agent or indemnitee of any
Consenting Party or its Affiliates is an intended third party beneficiary of Section 11.10(a) and
shall be entitled to enforce its rights thereunder.




          SECTION 11.14. 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 11.15. Power of Attorney. Each Limited Partner, by its execution hereof, hereby makes, constitutes and appoints the
General Partner as its 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 original certificate of limited partnership of the Partnership
and all amendments thereto required or permitted by law or the provisions of this Agreement; (c)
all certificates 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 the General Partner to carry out the provisions of this Agreement (including
the provisions of Section 8.04) 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 the 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 the 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.







38









 








          SECTION 11.16. Separate Agreements; Schedules. Notwithstanding any other provision of this Agreement, including Section 11.12, the General
Partner may, or may cause the Partnership to, without the approval of any Limited Partner or other
Person, enter into separate subscription, letter or other agreements with individual Limited
Partners with respect to any matter, which have the effect of establishing rights under, or
altering, supplementing or amending the terms of, this Agreement. The parties hereto agree that
any terms contained in any such separate agreement shall govern with respect to such Limited
Partner(s) party thereto notwithstanding the provisions of this Agreement. The 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
the 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 11.17. Partnership Status. The parties intend to treat the Partnership as a partnership for U.S. federal income tax
purposes.




          SECTION 11.18. Delivery by Facsimile or Email. This Agreement, the agreements referred to herein, and each other agreement or instrument
entered into in connection herewith or therewith or contemplated hereby or thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or
email with scan or facsimile attachment, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal effect as if it were
the original signed version thereof delivered in person. No party hereto or to any such agreement
or instrument shall raise the use of a facsimile machine or email to deliver a signature or the
fact that any signature or agreement or instrument was transmitted or communicated through the use
of a facsimile machine or email as a defense to the formation or enforceability of a contract, and
each such party forever waives any such defense.




[Remainder of Page Intentionally Left Blank]




39









 





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




	 	 	 	 	 	 	 

	 	 	GENERAL PARTNER:	 	 
	 
	 	 	 	 	 	 
	 	 	CARLYLE HOLDINGS II GP L.L.C.	 	 
	 
	 	 	 	 	 	 
	 	 	By: The Carlyle Group L.P., its sole member	 	 
	 
	 	 	 	 	 	 
	 	 	By: Carlyle Group Management L.L.C., its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






[Amended and Restated Limited Partnership Agreement of Carlyle Holdings II L.P.]








 









 








	 	 	 	 	 	 	 

	 	 	LIMITED PARTNERS	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 
	 	 	 	 	 	 
	 	 	Solely to reflect its withdrawal as a limited partner
pursuant to Section 5.01(b):	 	 
	 
	 	 	 	 	 	 
	 	 	CARLYLE HOLDINGS II LIMITED PARTNER L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





[Amended and Restated Limited Partnership Agreement of Carlyle Holdings II L.P.]