EFTA00615446.pdf

BRH HOLDINGS, L.P. Amended and Restated Exempted Limited Partnership Agreement Dated July 13, 2007 THE TRANSFER OF THE PARTNERSHIP INTERESTS DESCRIBED IN THIS AGREEMENT IS RESTRICTED AS DESCRIBED HEREIN. NY1:1692185.10 EFTA00615446  TABLE OF CONTENTS Page Article 1 DEFINITIONS 1 Article 2 FORMATION AND ORGANIZATION 7 Section 2.1 Continuation 7 Section 2.2 Name 8 Section 2.3 Offices 8 Section 2.4 Term of Partnership 8 Section 2.5 Purpose of the Partnership 9 Section 2.6 Actions by Partnership 9 Section 2.7 Admission of Limited Partners; Withdrawal of Initial Limited Partner 9 Article 3 CAPITAL 9 Section 3.1 Contributions to Capital 9 Section 3.2 Rights of Partners in Capital 9 Section 3.3 Capital Accounts 10 Section 3.4 Allocation of Profits and Losses 11 Section 3.5 Tax Allocations 1I Section 3.6 Special Allocations 12 Article 4 DISTRIBUTIONS 13 Section 4.1 Distributions 13 Section 4.2 Withholding of Certain Amounts 14 Section 4.3 Limitation on Distributions 14 Article 5 MANAGEMENT 15 Section 5.1 Governance; Exchanges 15 Section 5.2 Delegation of Duties 15 Section 5.3 Transactions with Affiliates 15 Section 5.4 Expenses 16 Section 5.5 Rights of Limited Partners 16 Section 5.6 Indemnification 16 NYI:1692185.10 i EFTA00615447 Article 6 ADMISSIONS, TRANSFERS AND WITHDRAWALS 19 Section 6.1 Admission of Additional Limited Partners 19 Section 6.2 Transfer of Interests of Limited Partners 19 Section 6.3 Withdrawal of Partners 20 Article 7 DISSOLUTION AND LIQUIDATION 20 Section 7.1 Dissolution and Liquidation of Partnership 20 Article 8 GENERAL PROVISIONS 21 Section 8.1 Amendment of Partnership Agreement 21 Section 8.2 Special Power-of-Attorney 22 Section 8.3 Notices 23 Section 8.4 Agreement Binding Upon Successors and Assigns 23 Section 8.5 Governing Law 23 Section 8.6 Termination of Right of Action 23 Section 8.7 Not for Benefit of Creditors 23 Section 8.8 Consents 24 Section 8.9 Reports 24 Section 8.10 Filings 24 Section 8.11 Arbitration 24 Section 8.12 Headings, Gender, Etc 24 NYI:1692185.10 II EFTA00615448  BRH HOLDINGS, L.P. A Cayman Islands Exempted Limited Partnership AMENDED AND RESTATED EXEMPTED LIMITED PARTNERSHIP AGREEMENT AMENDED AND RESTATED EXEMPTED LIMITED PARTNERSHIP AGREEMENT of BRH HOLDINGS, L.P. (the "Partnership") entered into on the 13th day of July, 2007, by and among BRH Holdings GP, Ltd, a Cayman Islands exempted company, as the sole general partner (the "General Partner"), Marc Edward Parrott, Esq. (the "Initial Limited Partner") and the Persons whose names and addresses are set forth in the Schedule of Partners under the caption "Limited Partners" as the limited partners. WITNESSETH: WHEREAS, the Partnership was formed pursuant to the laws of the Cayman Islands and an Initial Exempted Limited Partnership Agreement of the Partnership, dated 26 April, 2007 (the "Original Agreement'), between the General Partner and Marc Edward Parrott, Esq. as the Initial Limited Partner; WHEREAS, the parties wish to amend and restate the Original Agreement in its entirety to permit the withdrawal of Marc Edward Parrott, Esq. as the Initial Limited Partner and the admission of certain other limited partners and, further, to more fully set forth the agreement among the Partners; NOW, THEREFORE, the parties hereto hereby agree as follows: ARTICLE 1 DEFINITIONS "Act' means the Exempted Limited Partnership Law (as revised) of the Cayman Islands, as the same may be amended from time to time. "Accounting Period" means the period beginning on either the date of formation of the Partnership or the first day following the last day of the immediately preceding Accounting Period, as the case may be, and ending on the earliest of (i) the date immediately preceding the date on which an additional capital contribution is made to the Partnership by a Partner, (ii) the date immediately preceding the date on which the Partnership distributes any material amount of its property, (iii) the date on which there is a withdrawal of a Partner or a partial withdrawal of the capital of any Partner, (iv) the date immediately after the date on which there occurs an event that causes a change in any Partner's Heritage Points Percentage or Sharing Percentage, (v) the next December 31, (vi) the date on which the Partnership terminates and (vii) any other date which the General Partner determines. NV1:1692185.10 EFTA00615449  "Affiliate" means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by or under common Control with such Person. "Agreement' means this Amended and Restated Exempted Limited Partnership Agreement, as amended or supplemented from time to lime. "Agreement Among Principals" means the Agreement Among Principals, dated as of the date hereof, by and among Leon D. Black, Marc J. Rowan, Joshua J. Harris, Black Family Partners, L.P., a Delaware limited partnership, MJR Foundation LLC, a New York limited liability company, Intermediate Holdings and the Partnership. "Alternative Vesting" shall have the meaning set forth in Section 4.1(d). "AOG Unit' refers to a unit in the Apollo Operating Group, which represents one limited partnership interest in each of the limited partnerships that comprise the Apollo Operating Group and any equity securities issued or issuable in exchange for or with respect to such AOG Units (i) by way of a dividend, split or combination of shares or (ii) in connection with a reclassification, recapitalization, merger, consolidation or other reorganization. "Apollo" means Apollo Global Management, LLC, a Delaware limited liability company. "Apollo Operating Group" means (i) Apollo Management Holdings, L.P., a Delaware limited partnership, Apollo Principal Holdings I, L.P., a Delaware limited partnership, Apollo Principal Holdings II, L.P., a Delaware limited partnership, Apollo Principal Holdings III, L.P., a Cayman Islands exempted limited partnership, Apollo Principal Holdings IV, L.P., a Cayman Islands exempted limited partnership, and any successors thereto or other entities formed to serve as holding vehicles for Apollo carry vehicles, management companies or other entities formed to engage in the asset management business (including alternative asset management) and (ii) any such Apollo carry vehicles, management companies or other entities formed to engage in the asset management business (including alternative asset management) and receiving management fees, incentive fees, fees paid by Portfolio Companies, carry or other remuneration which are not Subsidiaries of the Persons described in clause (i), excluding any Funds and any Portfolio Companies. "Capital Account" means with respect to each Partner the capital account established and maintained on behalf of such Partner as described in Section 3.3. "Certificate" means the Certificate of Registration of Exempted Limited Partnership of the Partnership and any amendments thereto as issued by the Cayman Islands Registrar of Exempted Limited Partnerships. "Charitable Institution" means an organization described in Section 501(cX3) of the Code (or any corresponding provision of a future United State Internal Revenue law) which is exempt from income taxation under Section 501(a) thereof. "Claim" means any threatened, pending, or completed action, suit, claim, or proceeding, whether civil, criminal, administrative, or investigative. NV1:1692185.10 2 EFTA00615450  "Class A Shares" means the Class A Shares of Apollo representing Class A limited liability company interests in Apollo and any equity securities issued or issuable in exchange for or with respect to such Class A Shares (i) by way of a dividend, split or combination of shares or (ii) in connection with a reclassification, recapitalization, merger, consolidation or other reorganization. "Code" means the United States Internal Revenue Code of 1986, as amended and as hereafter amended, or any successor law. "Contribution Agreement' means the Contribution, Purchase and Sale Agreement dated as of the date hereof, by and among the Partnership, Black Family Partners, L.P., a Delaware limited partnership, MJR Foundation LLC, a New York limited liability company, Joshua J. Harris, the Partnership, Intermediate Holdings, APO Corp., a Delaware corporation, APO Asset Co., LLC, a Delaware limited liability company, and each member of the Apollo Operating Group. "Control' means (including, with correlative meaning, the terms "controlling," "controlled by" and "under common control with") with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or investment decisions of such Person, whether through the ownership of voting securities, by contract or otherwise. "Covered Business" means, with respect to a particular Indemnitee, the Partnership, Apollo, the Apollo Operating Group, any Fund, any Portfolio Company or any of their respective Subsidiaries, and any other legal entity for which the Partnership, Apollo, the Apollo Operating Group, any Fund, any Portfolio Company or any of their respective Subsidiaries has specifically requested (for the benefit of the Partnership, Apollo, the Apollo Operating Group, any Fund, any Portfolio Company or any such Subsidiary) that such Indemnitee serve as an officer, director, manager, member, partner, trustee, employee or similar capacity. "Disquali&ing Conduct' means fraud, willful misconduct or gross negligence (as such legal concept of "gross negligence" is determined in accordance with the internal laws of the State of New York). "Distribution Account' has the meaning set forth in Section 4.1. "Exchange" means (i) the exchange by Intermediate Holdings of an AOG Unit for a Class A Share pursuant to the Exchange Agreement, and the subsequent sale of such Class A Share at prevailing market prices for a Class A Share (unless the Person requesting such Exchange is willing to accept a lower price, e.g., to effect a block trade), (ii) a redemption of AOG Units initiated by Apollo or any of its Subsidiaries, solely upon Apollo's election, in which any Limited Partner elects to participate, (iii) a sale by Intermediate Holdings of AOG Units or (iv) at the option of the General Partner, in the event of a Pro Rata Exchange or a Non-Pro Rata Exchange, an In-Kind Exchange Distribution. NYI:1692185.10 3 EFTA00615451  "Exchange Agreement' means the Exchange Agreement, dated as of the date hereof by and among Apollo, each member of the Apollo Operating Group, Intermediate Holdings and the other parties thereto. "Fiscal Yea?' means, with respect to a year, the period commencing on January 1 of such year and ending on December 31 of such year (or on the date of a final distribution pursuant to Section 7.1(a)(iiI), unless the General Partner shall elect another fiscal year for the Partnership which is a permissible taxable year under the Code. "Fund" means any pooled investment vehicle or similar entity sponsored or managed by Apollo or any of its Subsidiaries. "Fund IV' means, collectively, Apollo Investment Fund IV, L.P., a Delaware limited partnership, and Apollo Overseas Partners IV, L.P., a Cayman Islands exempted limited partnership. "Fund IV GP' means Apollo Advisors IV, L.P., a Delaware limited partnership. "Fund V' means, collectively, Apollo Investment Fund V, L.P., a Delaware limited partnership, Apollo Overseas Partners V, L.P., a Cayman Islands exempted limited partnership, Apollo Netherlands Partners V(A), L.P., a Cayman Islands exempted limited partnership, Apollo Netherlands Partners V(B), L.P., a Cayman Islands exempted limited partnership, Apollo German Partners V GmbH & Co. KG, a German limited partnership, AIF V Euro Holdings, L.P., a Cayman Islands exempted limited partnership, and Apollo Investment Fund V (PLASE), L.P., a Delaware limited partnership. "Fund V GP' means, collectively, Apollo Advisors V, L.P., a Delaware limited partnership and Apollo Advisors V, (EH Cayman), L.P., a Cayman Islands exempted limited partnership. "General Partner" has the meaning set forth in the recitals to this Agreement. "Group" shall mean with respect to each Principal, such Principal and (i) such Principal's spouse, (ii) a lineal descendant of such Principal's parents, the spouse of any such descendant or a lineal descendent of any such spouse, (iii) a Charitable Institution controlled by such Principal or other member of his Group, (iv) a trustee of a trust (whether inter vivos or testamentary), all of the current beneficiaries and presumptive remaindermen of which are one or more of such Principal and Persons described in clauses (i) through (iii) of this definition, (v) a corporation, limited liability company or partnership, of which all of the outstanding shares of capital stock or interests therein are owned by one or more of such Principal and Persons described in clauses (i) through (iv) of this definition, (vi) an individual mandated under a qualified domestic relations order, or (vii) a legal or personal representative of such Principal in the event of his death or Disability (as defined in the Agreement Among Principals). For purposes of this definition, (x) "lineal descendants" shall not include individuals adopted after attaining the age of eighteen (18) years and such adopted Person's descendants; and (y) "presumptive remaindermen" shall refer to NY 1:1692185.10 4 EFTA00615452 those Persons entitled to a share of a trust's assets if it were then to terminate. No Principal shall ever be a member of the Group of another Principal. "Heritage Funds" means each of Fund IV and Fund V. "Heritage Points" means the nominal number of "points" with respect to each Heritage Fund contributed by each Partner as set forth on Schedule I hereto. "Heritage Points Percentage" means, with respect to any Principal Group and Heritage Fund, such Principal Group's Pecuniary Interest in the Heritage Points of such Heritage Fund divided by the Pecuniary Interest of all the Principal Groups in the Heritage Points of such Heritage Fund as set forth on Schedule I hereto, as adjusted pursuant to the Agreement Among Principals. For the avoidance of doubt, Persons other than the Principal Groups own interests, directly or indirectly, in Fund IV and Fund V, and therefore, a Principal Group's Heritage Points Percentage will be greater than its ownership percentage in Fund IV and Fund V, respectively. "Indemnitee" shall have the meaning set forth in Section 5.6. "Initial Limited Partner" has the meaning set forth in the recitals to this Agreement. "In-Kind Exchange Distribution" means a Pro Rata Exchange or a Non-Pro Rata Exchange accomplished by the distribution of AOG Units as described in Section 2.4(a) of the Agreement Among Principals. "Interest' means the interest any partner holds in the Partnership, either as a General Partner or a Limited Partner, as appropriate. "Intermediate Holdings" means AP Professional Holdings, L.P., a Cayman Islands exempted limited partnership. "Investment' shall mean any investment (or similar term describing the results of the deployment of capital) as defined in the governing document of any Fund managed (directly or indirectly) by a member of the Apollo Operating Group. "Limited Partner" means any Person admitted as a limited partner to the Partnership in accordance with this Agreement, until such Person withdraws entirely as a limited partner of the Partnership, in his capacity as a limited partner of the Partnership. Unless the context otherwise requires, all references herein to a Limited Partner shall be construed as referring collectively to such Limited Partner and to each member of his Group that also is a Limited Partner. "Losses" shall mean all losses, claims, demands, costs, damages, liabilities, expenses (including reasonable attorneys' fees and expenses), judgments, fines, settlements and other similar amounts. "Net Profit' and "Net Loss" means, with respect to any Fiscal Year, net profit or net loss of the Partnership for such Fiscal Year, determined in accordance with § 703(a) of the Code, NYI:1692185.10 5 EFTA00615453 including any items that are separately stated for purposes of § 702(a) of the Code, as determined in accordance with federal income tax accounting principles with the following adjustments: (a) any income of the Partnership that is exempt from United States federal income tax shall be included as income; (b) any expenditures of the Partnership described in § 705(a)(2)(B) of the Code or treated as expenditures pursuant to § 1.704-1(bX2XivXi) of the Treasury Regulations shall be treated as current expenses; (c) any items of income, gain, loss or deduction specially allocated pursuant to Sections 3.4(al or 3.4(b) shall be excluded from the determination of Net Profit and Net Loss; and (d) treating as an item of gain (loss) the excess (deficit), if any, of the gross fair market value of property distributed in such Fiscal Year over (under) the amount at which such property was carried on the books of the Partnership. "Non-Pro Rata Exchange" means an Exchange the proceeds of which (including, in the case of an In-Kind Exchange Distribution, the AOG Units) will be distributed to (or otherwise benefit) the Limited Partners in any manner other than a Pro Rata Exchange. "Original Agreement' has the meaning set forth in the recitals to this Agreement. "Partner" means the General Partner or any of the Limited Partners, and "Partners" means the General Partner and all of the Limited Partners. "Partnership" means the limited partnership continued pursuant to this Agreement. "Pecuniary Interest' means (i) with respect to AOG Units, the number of AOG Units that would be distributable to a Principal Group assuming that the Partnership, Intermediate Holdings and any other Person that holds AOG Units in which the Partnership has a direct or indirect interest were liquidated and distributed their respective assets in accordance with their respective governing agreements and (ii) with respect to Heritage Points, the number of Heritage Points that would be distributable to a Principal Group assuming that the Partnership, Intermediate Holdings and any other Person that holds Heritage Points in which the Partnership has a direct or indirect interest were liquidated and distributed their respective assets in accordance with their respective governing agreements (in each case, assuming the interests held by the Principals were fully vested). "Person" shall be construed broadly and includes any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, governmental entity or other entity. "Portfolio Company" means any Person in which any Fund owns an Investment. "Principal' means each of Leon D. Black, Marc J. Rowan, Joshua J. Harris. NYI:1692185.10 6 EFTA00615454  "Principal Group" means with respect to any Principal, such Principal and his Group. "Pro Rata Exchange" means an Exchange the proceeds of which (including, in the case of an In-Kind Exchange Distribution, the AOG Units) will be distributed to (or otherwise benefit) the Limited Partners pro rata in accordance with respective Sharing Percentages. "Schedule of Partners" means a schedule to be maintained by the General Partner showing the following information with respect to each Partner: name, address, and required capital contribution. "Sharing Percentage means, with respect to any Partner, the amount, expressed as a percentage, obtained by dividing (i) the Pecuniary Interest of such Partner in AOG Units by (ii) the Pecuniary Interest of all the Partners in AOG Units, as set forth on Schedule II hereto, as adjusted pursuant to the Agreement Among Principals. For the avoidance of doubt, Persons other than Partners own interests, directly or indirectly, in the Apollo Operating Group and related management companies, and therefore, a Partner's Sharing Percentage will be greater than his ownership percentage in any particular entity within the Apollo Operating Group. "Subsidiary" or "Subsidiaries" means, with respect to any Person, as of any date of determination, any other Person as to which such Person owns, directly or indirectly, or otherwise controls, more than 50% of the voting shares or other similar interests or the sole general partner interest or managing member or similar interest of such Person. "Tax Receivable Agreement' means the Tax Receivable Agreement, dated as of the date hereof, by and among APO Corp., a Delaware corporation, Apollo Principal Holdings II, L.P., a Delaware limited partnership, Apollo Principal Holdings IV, L.P., a Cayman Islands exempted limited partnership, Apollo Management Holdings, L.P., a Delaware limited partnership (together with all other Persons in which APO Corp. acquires a partnership interest, member interest or similar interest after the date thereof and who becomes party thereto by execution of a joinder, and the Principals and the Senior Manager Limited Partners (as defined in exempted limited partnership agreement, as amended, of Intermediate Holdings), Intermediate Holdings and the other parties thereto. "Transfer" means any direct or indirect sale, exchange, transfer, assignment or other disposition by a Partner of any or all of his interest in the Partnership (whether respecting, for example, economic rights only or all the rights associated with the interest) to another Person, whether voluntary or involuntary. ARTICLE 2 FORMATION AND ORGANIZATION Section 2.1 Continuation The Partnership was formed and is hereby continued as a limited partnership under and pursuant to the Act. The Certificate was issued on April 27, 2007. The General Partner shall execute, acknowledge and file any amendments to the Certificate as may be required by the Act and any other instruments, documents and certificates which, in the opinion of the Partnership's NY 1:1692185.10 7 EFTA00615455 legal counsel, may from time to time be required by the laws of the Cayman Islands or any other jurisdiction in which the Partnership shall determine to do business, or any political subdivision or agency thereof, or which such legal counsel may deem necessary or appropriate to effectuate, implement and continue the valid and subsisting existence and business of the Partnership. Section 2.2 Name The name of the Partnership shall be "BAH Holdings, L.P." or such other name as the General Partner hereafter may adopt upon causing an appropriate amendment to be made to this Agreement and to the Certificate to be issued in accordance with the Act. Promptly thereafter, the General Partner shall send notice thereof to each Limited Partner. Section 2.3 Offices The Partnership shall maintain its principal office, and may maintain one or more additional offices, at such place or places as the General Partner may from time to time determine. The Partnership shall have its registered office at the office of Walkers SPV Limited, PO Box 908GT, Walker House, Mary Street, George Town, Grand Cayman, Cayman Islands, KY1-9002 B.W.I. or at such place or places in the Cayman Islands as the General Partner may, with advance notice to the Limited Partners, decide. Section 2.4 Term of Partnership (a) The term of the Partnership shall continue until its dissolution (without continuation) or the earlier of: (i) at any time there are no Limited Partners, unless the business of the Partnership is continued in accordance with the Act; (ii) any event that results in the General Partner ceasing to be a general partner of the Partnership under the Act; provided, that the Partnership shall not be dissolved and required to be wound up in connection with any such event if (A) at the time of the occurrence of such event there is at least one remaining general partner of the Partnership who is hereby authorized to and does carry on the business of the Partnership, or (B) within 90 days after the occurrence of such event, the Limited Partners agree by unanimous written consent or unanimous vote to continue the business of the Partnership and to the appointment, effective as of the date of such event, if required, of one or more additional general partners of the Partnership; and (iii) the entry of a decree of judicial dissolution under Section 15(2) of the Act. (b) The parties agree that irreparable damage would be done to the goodwill and reputation of the Partners if any Limited Partner should bring an action to dissolve the Partnership. Care has been taken in this Agreement to provide for fair and just payment in liquidation of the interests of all Partners. Accordingly, to the fullest extent permitted by law, each Limited Partner hereby waives and renounces his right to such a decree of dissolution or to seek the appointment of a liquidator for the Partnership, except as provided herein. NYI:1692183.10 8 EFTA00615456 Section 2.5 Purpose of the Partnership The purpose of the Partnership is to engage in any lawful act or activity for which limited partnerships may be formed under the Act, and to engage in any and all activities necessary or incidental to the foregoing. Section 2.6 Actions by Partnership The Partnership may execute, deliver and perform, and the General Partner may execute and deliver, all contracts, agreements and other undertakings, and engage in all activities and transactions as may in the opinion of the General Partner be necessary or advisable to carry out the objects and purposes of the Partnership, without the approval or vote of any Limited Partner. Section 2.7 Admission of Limited Partners; Withdrawal of Initial Limited Partner On the date hereof, the Persons whose names are set forth in the Schedule of Partners under the caption "Limited Partners" shall be admitted to the Partnership as limited partners of the Partnership upon their execution of a counterpart of this Agreement or such other instrument evidencing, to the satisfaction of the General Partner, such Limited Partner's intent to become a Limited Partner. Immediately following the admission of such Limited Partners on the date hereof, the Initial Limited Partner shall cease to be a partner of the Partnership and shall have his original capital contribution returned to him and shall have no further rights and claims against the Partnership. ARTICLE 3 CAPITAL Section 3d Contributions to Capital Contributions to the capital of the Partnership shall be made as of the date of admission of such Limited Partner as a limited partner of the Partnership in accordance with the Contribution Agreement. Except as may be provided by law or in the Agreement Among Principals, the Limited Partners shall not be required to make any other capital contribution to the Partnership and no Limited Partner shall be obligated to restore any deficit balance in his Capital Account. Section 3.2 Rights of Partners in Capital (a) No Partner shall be entitled to interest on his capital contributions to the Partnership. (b) No Partner shall have the right to distributions or the return of any contribution to the capital of the Partnership except (i) for distributions in accordance with Section 4.1 or (ii) upon dissolution of the Partnership. The General Partner shall not be liable for the return of any such amounts. Wu:1692185.10 9 EFTA00615457 Section 3.3 Capital Accounts (a) The Partnership shall maintain for each Partner a separate Capital Account in accordance with the rules of Treasury Regulation § 1.704-1(bX2)(iv). (b) If, in the opinion of the General Partner, the manner in which Capital Accounts are to be maintained pursuant to the provisions of this Agreement should be modified in order to comply with Section 704(b) of the Code and the Treasury Regulations thereunder, then the method by which Capital Accounts are maintained shall be so modified; provided, however, that any such change shall be done so as to minimize, to the extent possible, any differences in amounts that would otherwise be distributable to a Partner. (c) Each Partner's Capital Account shall have an initial balance equal to the amount of cash and the value of any securities or other property constituting such Partner's initial contribution to the capital of the Partnership, as such contribution is set forth on the Schedule of Partners. (d) Each Partner's Capital Account shall be increased by the sum of: (i) the amount of cash and the net value of any securities or other property constituting additional contributions by such Partner to the capital of the Partnership in accordance with Section 3.1; plus (ii) the portion of any Net Profit, income, or gain allocated to such Partner's Capital Account pursuant to Sections 3.4 and 16. (e) Each Partner's Capital Account shall be reduced by the sum of (without duplication): (i) the portion of any Net Loss, loss, or expense allocated to such Partner's Capital Account pursuant to Sections 3.4 and L6; plus (ii) the amount of any cash and the net value of any property distributed to such Partner pursuant to Section 4.1 including any amount deducted pursuant to Section 4.2 or Section 5.4 from any such amount distributed; plus (iii) any withholding taxes or other items payable by the Partnership, to the extent the General Partner reasonably determines that, pursuant to Section 4.2 Section 5.4 or pursuant to any other provision of this Agreement, such item is to be charged to such Partner's Capital Account on a basis which is not in accordance with the current respective Sharing Percentage of all Partners. (f) Upon a Partner's forfeiture of a portion of his Pecuniary Interest in AOG Units pursuant to Section 4.1 of the Agreement Among Principals, (i) a portion of such Partner's Capital Account in an amount equal to the product of (w) the net value of any securities or other property (excluding cash) constituting contributions by such Partner to NYI:1692185.10 10 EFTA00615458  the capital of the Partnership in accordance with Section 3.1 and Section 3.3(d)(i) and (x) a fraction, the numerator of which is such Partner's Sharing Percentage immediately after giving effect to such forfeiture and denominator of which is such Partner's Sharing Percentage immediately prior to giving effect to such forfeiture, will be forfeited, reducing such Partner's Capital Account by such amount and will increase the Capital Account of the Persons who are entitled to receive the forfeiture pursuant to Section 4.1 of the Agreement Among Principals, pro-rata in accordance with their respective Sharing Percentages and (ii) all credits and debits to the Capital Account of such Partner shall, from the date of termination of such Partner until the applicable Forfeiture Date (as defined in the Agreement Among Principals), be computed on a pro-fonna basis assuming the Sharing Percentage of such forfeiting Partner had been adjusted on the date of termination to give effect to the forfeiture to occur on the Forfeiture Date. Amounts that would, but for clause (ii) of the preceding sentence, be debited or credited to the Capital Account of such Partner shall, on the applicable Forfeiture Date, be debited or credited to the Capital Account of the Persons who are entitled to receive the forfeiture pursuant to Section 4.1 of the Agreement Among Principals, pro-rata in accordance with their respective Sharing Percentages. In addition, to the extent that the Partnership receives an increased capital account in Intermediate Holdings as a result of a forfeiture of interests by a partner in such partnership, such increase in the Capital Accounts will be allocated among the Partners pro rata based on their respective Sharing Percentages at the effective time of the forfeiture. Within twelve (12) months of a Forfeiture Date, the forfeiting Partner shall receive a distribution in respect of all cash contributions actually made to the Partnership (if any) in an amount equal to the product of (y) the amount of such cash contributions and (z) a fraction, the numerator of which is the Sharing Percentage forfeited by such Partner, and the denominator of which is such Partner's Sharing Percentage immediately prior to giving effect to such forfeiture. Section 3.4 Allocation of Profits and Losses (a) All items of income, gain, loss, and expense for any Accounting Period, attributable to allocations of those items by Fund IV and Fund V on account of Heritage Points shall be allocated among the Partners pursuant to their respective Heritage Points Percentages as of the first day of that Accounting Period. (b) All items of income, gain, loss and expense attributable to a Non-Pro Rata Exchange, including any gain or loss realized with respect to an In-Kind Exchange Distribution shall be allocated to the Partner who directed such Non-Pro Rata Exchange. (c) Net Profit or Net Loss for an Accounting Period shall be allocated among the Partners in the ratio of their Sharing Percentages as of the first day of that Accounting Period. Section 3.5 Tax Allocations (a) For United States federal, state and local income tax purposes, Partnership income, gain, loss, deduction or credit (or any item thereof) for each Accounting Period NYI:1692185.10 11 EFTA00615459  shall be allocated to and among the Partners in order to reflect the allocations of Net Profit and Net Loss and other items of income, gain, loss and expenses pursuant to the provisions of Section 3.4 for such Accounting Period, taking into account any variation between the adjusted tax basis and book value of Partnership property in accordance with the principles of Section 704(c) of the Code. The parties hereto agree that any Non-Pro Rata Exchange shall be treated as a sale of those interests contributed by the Partner who directed such exchange, and any taxable gain or loss related thereto shall be allocated solely to such Partner. In addition, the distribution of AOG Units made pursuant to an In- Kind Exchange Distribution shall be treated as a distribution of an undivided interest in the Partnership's assets as described in Treasury Regulation Sections 1.704-4(cX6) and 1.737-2(dX4). (b) If any Partner or Partners are treated for United States federal income tax purposes as realizing ordinary income because of receiving interests in the Partnership (whether under Section 83 of the Code or under any similar provision of any law, rule or regulation) and the Partnership is entitled to any offsetting deduction (net of any income realized by the Partnership as a result of such receipt), the Partnership's net deduction shall be allocated to and among the Partners in such manner as to offset, as nearly as possible, the ordinary income realized by such Partner or Partners. Section 3.6 Special Allocations. Notwithstanding anything in this Section 3 to the contrary: (a) Losses attributable to partner nonrecourse debt (as defined in Treasury Regulation Section 1.704-2(bX4)) shall be allocated in the manner required by Treasury Regulation Section 1.704-2(i). If there is a net decrease during a Accounting Period in partner nonrecourse debt minimum gain (as determined in accordance with Treasury Regulation Section 1.704-2(i)(3)), Partnership income and gain for such Accounting Period (and, if necessary, for subsequent Accounting Periods) shall be allocated to the Partners in the amounts and of such character as determined according to Treasury Regulation Section 1.704-2(iX4). (b) Nonrecourse deductions (as determined according to Treasury Regulation Section 1.704-2(bX1)) for any Accounting Period shall be allocated to the Partners in the same proportions in which capital contributions have been made. If there is a net decrease in the minimum gain during any Accounting Period, each Partner shall be allocated Partnership income and gain for such Accounting Period (and, if necessary, for subsequent Accounting Periods) in the amounts and of such character as determined according to Treasury Regulation Section 1.704-2(f). This Section 3.6(b) is intended to be a "minimum gain chargeback" provision that complies with the requirements of Treasury Regulation Section 1.704-2(0, and shall be interpreted in a manner consistent therewith. (c) If any Partner that unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulation Section 1.704- NYI:1692185.10 12 EFTA00615460  1(bX2XiiXdX4), (5) or (6) has an Capital Account deficit as of the end of any Accounting Period, computed after the application of Sections 3.6(a) and 3.6(b) but before the application of any other allocation provision of this Agreement, then Partnership income and gain for such Accounting Period shall be allocated to such Partner in proportion to, and to the extent of, such Capital Account deficit. This Section 3.6(c) is intended to be a "qualified income offset" provision as described in Treasury Regulation Section 1.704- 1(b)(2XiiXd) and shall be interpreted in a manner consistent therewith. (d) In no event shall Net Losses be allocated to a Partner if such allocation would cause or increase a deficit in such Partner's adjusted Capital Account balance. Any such Net Losses shall be allocated to the other Partners in proportion to their Ownership Percentages. Income and gain shall be first allocated to those Partners who have received allocations of Net Loss pursuant to this provision, in order to reverse such allocations. (e) The allocations set forth in Sections 3.6(a) through 3.6(d) (the "Regulatory Allocations") are intended to comply with certain requirements of Sections 1.704-1(b) and 1.704-2 of the Treasury Regulations. The Regulatory Allocations may not be consistent with the manner in which the Partners intend to allocate Net Profits and Net Losses of the Partnership or make distributions from the Partnership. Accordingly, notwithstanding the other provisions of this Agreement, but subject to the Regulatory Allocations, income, gain, deduction, and loss shall be reallocated among the Partners so as to eliminate the effect of the Regulatory Allocations and thereby cause the respective Capital Accounts of the Partners to be in the amounts (or as close thereto as possible) they would have been if Net Profit and Net Loss (and such other items of income, gain, deduction and loss) had been allocated without reference to the Regulatory Allocations. In general, the Partners anticipate that this will be accomplished by specially allocating other Net Profit and Net Loss (and such other items of income, gain, deduction and loss) among the Partners so that the net amount of the Regulatory Allocations and such special allocations to each such Partner is zero. ARTICLE 4 DISTRIBUTIONS Section 4.1 Distributions (a) The Partnership shall establish and maintain a ledger account on behalf of each Partner (each a "Distribution Account'), in each case, in accordance with this Section 4.1. Distribution Accounts shall be adjusted as provided in the Agreement Among Principals. (b) Subject to the retention of cash reserves to account for reasonably anticipated expenses and other liabilities as the General Partner may determine to be appropriate, the Partnership shall make distributions to the Partners promptly upon receipt of any cash distributions from the Apollo Operating Group or Intermediate Holdings. Such distributions shall be made in cash, without interest. NY1:1692185.10 13 EFTA00615461  (c) The net proceeds (including any payments received by Holdings pursuant to the Tax Receivable Agreement) of any (i) Pro Rata Exchange shall be distributed to the Partners in accordance with their respective Sharing Percentages, (ii) Non-Pro Rata Exchange shall be distributed entirely to the Partner(s) that directed such Non-Pro Rata Exchange, (iii) other distribution to the Partnership which has properly been reflected in the Distribution Account pursuant to this Section 4.1 shall be distributed to the Partners in proportion to (and not in excess of) any credit balance in their respective Distribution Accounts and (iv) other distribution (other than a distribution of Heritage Points) shall be distributed to the Principal Groups in accordance with their respective Sharing Percentages (it being understood that any expenses incurred in connection with any sale shall be borne by the Principals directing such sale in proportion to the number of AOG Units being sold by such Principals). In the event that the Partnership distributes the partnership interests represented by the Heritage Points to the Partners, it shall distribute such partnership interests in accordance with Heritage Points Percentages. If, pursuant to Section 3.03 of the Tax Receivable Agreement, there is a prorated payment made, in any year, to the Partnership (either directly or indirectly through Intermediate Holdings), then the Partners will receive portions of such reduced payment, pro rata, based upon the relative Basis Adjustments (as such term is used in the Tax Receivable Agreement) attributable to each of the Partners by reason of their participation in the relevant Exchanges. Section 4.2 Withholding of Certain Amounts (a) If the Partnership incurs a withholding tax or other tax obligation with respect to the share of Partnership income allocable to any Partner, then the General Partner, without limitation of any other rights of the Partnership, may cause the amount of such obligation to be debited against the Capital Account of such Partner when the Partnership pays such obligation, and any amounts then or thereafter distributable to such Partner shall be reduced by the amount of such taxes. If the amount of such taxes is greater than any such then distributable amounts, then such Partner and any successor to such Partner's interest shall indemnify and hold harmless the Partnership and the General Partner against, and shall pay to the Partnership as a contribution to the capital of the Partnership, upon demand of the General Partner, the amount of such excess. (b) The General Partner may withhold from any distribution to any Limited Partner pursuant to this Agreement any other amounts due from such Limited Partner to the Partnership or the General Partner pursuant to this Agreement to the extent not otherwise paid. My amounts s