Form SC TO-T Carlyle Credit Solutions Filed by: CDL Tender Fund 2022-1, L.P.

 

Exhibit (d)(1)

 

Execution Version

 

 

 CDL Tender Fund 2022-1, L.P.

 

 

AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

 

 

DATED April 4, 2022

 

THE LIMITED PARTNERSHIP INTERESTS (THE “INTERESTS”) OF CDL Tender Fund 2022-1, L.P. HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. INTERESTS MUST BE ACQUIRED FOR INVESTMENT ONLY AND ARE SUBJECT TO SIGNIFICANT RESTRICTIONS ON TRANSFERABILITY. INTERESTS MAY NOT BE OFFERED FOR SALE, PLEDGED, CHARGED, HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH (I) THE SECURITIES ACT OR ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OF ANY OTHER JURISDICTION AND (II) THE TERMS AND CONDITIONS OF THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT, INCLUDING SECTION 8.2 HEREOF. THEREFORE, PURCHASERS OF INTERESTS WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.

 

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Table of Contents

 

		Page
Article I Definitions		1
1.1.	Defined Terms	1
1.2.	Interpretation	13
Article II General Provisions		13
2.1.	Formation	13
2.2.	Name	13
2.3.	Organizational Statements and Other Filings	14
2.4.	Purpose	14
2.5.	BDC Subscription Agreements	14
2.6.	Special Tender Offer Valuation Date	15
2.7.	Specific Authorization	15
2.8.	Principal Place of Business; Other Places of Business	15
2.9.	Registered Office and Registered Agent	15
2.10.	Term	16
2.11.	Fiscal Year	16
2.12.	Withdrawal of Initial Limited Partner	16
2.13.	Substitution	16
Article III Capital Contributions; Distributions		17
3.1.	Capital Contributions.	17
3.2.	[Intentionally Omitted].	19
3.3.	Subsequent Closings	19
3.4.	Distributions.	20
Article IV The General Partner		21
4.1.	Investment Guidelines	21
4.2.	Powers of the General Partner.	21
4.3.	Limitation on Liability.	23
4.4.	Indemnification.	24
4.5.	General Partner as Limited Partner	29
4.6.	Conflicts of Interest; Other Activities	29
4.7.	Valuation.	30
4.8.	ERISA Covenant	30

 

 

Table of Contents

(continued)

 

		Page
Article V The Limited Partners		30
5.1.	Management.	30
5.2.	Liabilities of the Limited Partners	31
5.3.	Limited Partners’ Outside Activities	31
Article VI Expenses and Fees		32
6.1.	Expenses.	32
6.2.	[Intentionally Omitted].	32
Article VII Books and Records and Reports to Partners		33
7.1.	Books and Records	33
7.2.	Income Tax Information.	33
7.3.	Reports to Partners	34
7.4.	Partnership Meetings.	34
Article VIII Transfers, Withdrawals and Default		36
8.1.	Transfer and Withdrawal of the General Partner.	36
8.2.	Transfers/Substitutions by Limited Partners.	38
8.3.	Defaulting Limited Partners	40
8.4.	Further Actions	41
8.5.	Admissions and Withdrawals Generally	41
8.6.	Quarterly Tender Offers.	42
8.7.	Withdrawals.	43
8.8.	[Intentionally Omitted].	45
Article IX Term, Winding Up and Dissolution of the Partnership		45
9.1.	Term	45
9.2.	Winding-up	46
9.3.	Final Distribution	46
Article X Capital Accounts and Allocations of Profits and Losses		47
10.1.	Capital Accounts.	47
10.2.	Allocations of Profits and Losses	48
10.3.	Special Allocation Provisions	48

 

 

Table of Contents

(continued)

 

		Page
10.4.	Tax Allocations	49
10.5.	Other Allocation Provisions	50
10.6.	Tax Advances	50
Article XI Miscellaneous		51
11.1.	Waiver of Accounting and Partition	51
11.2.	Power of Attorney	51
11.3.	Amendments.	53
11.4.	Confidentiality.	55
11.5.	Entire Agreement	59
11.6.	Further Actions	60
11.7.	Severability	60
11.8.	Notices; Consents.	60
11.9.	Governing Law and Jurisdiction	61
11.10.	Arbitration	62
11.11.	Successors and Assigns	62
11.12.	Counterparts	62
11.13.	Determinations of the Partners	63
11.14.	Headings	63
11.15.	Partnership Tax Treatment and Other Tax Matters.	63
11.16.	Counsel	65
11.17.	Compliance with Anti-Money Laundering Requirements	65
11.18.	Affiliated Transactions	66
11.19.	Waiver of Certain Actions	66
11.20.	No Solicitation	66
11.22.	Survival	67

 

 

AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

 

OF

 

CDL Tender Fund 2022-1, L.P.

 

THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (this “Agreement”) of CDL Tender Fund 2022-1, L.P., a Delaware limited partnership (the “Partnership”), is made this 4th day of April, 2022 by and among CDL Tender Fund 2022-1 GP, L.L.C., a Delaware limited liability company, as general partner, Carlyle SLP Ltd., as the initial limited partner (the “Initial Limited Partner”), and the Limited Partners. Capitalized terms used herein without definition have the meanings specified in Section 1.1.

 

WITNESSETH:

 

WHEREAS, the General Partner and the Initial Limited Partner entered into the Limited Partnership Agreement of the Partnership, dated February 18, 2022 (the “Original Agreement”) and, upon filing of the Certificate of Limited Partnership of the Partnership (as amended or amended and restated from time to time, the “Certificate of Limited Partnership”), formed a limited partnership under the laws of the State of Delaware under the name CDL Tender Fund 2022-1, L.P.; and

 

WHEREAS, the parties hereto desire to enter into this Agreement to permit the withdrawal of the Initial Limited Partner, the admission of additional limited partners of the Partnership and to make the modifications set forth herein and amend and restate the Original Agreement;

 

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

 

Article I

 

Definitions

 

1.1.          Defined Terms. As used herein, the following terms shall have the following meanings:

 

Act: The Delaware Revised Uniform Limited Partnership Act, 6 Del. Code §17-101 et seq., as the same may be amended from time to time.

 

  

§ 1.1

 

Additional BDC Subscription Agreement: As defined in Section 2.5.

 

Advisers Act: The U.S. Investment Advisers Act of 1940, as amended from time to time.

 

Affiliate: With respect to any Person, any Person directly or indirectly Controlling, Controlled by or under common Control with such Person. For the avoidance of doubt, (a) no Issuer or portfolio company of any Carlyle Investment Fund shall be deemed to be an Affiliate of Carlyle; provided that each such company that is Controlled by Carlyle shall be treated as an Affiliate of Carlyle for purposes of the definition of Voting Interests, and (b) no Segregated Unit shall be deemed to be an Affiliate of Carlyle.

 

Agreement: This Amended and Restated Limited Partnership Agreement, as the same may be amended, modified or supplemented from time to time.

 

Anti-Hybrid Rules: Any law or regulation implementing the recommendations of the OECD’s report entitled Neutralising the Effects of Hybrid Mismatch Arrangements, Action 2 - 2015 Final Report.

 

Applicable Limited Partner: A Limited Partner whose Interest, together with the Interest of any other Limited Partners whose Interest is required to be aggregated for purposes of calculating beneficial ownership pursuant to Rule 506(d)(1) under the Securities Act, represents 20% or more of the total Voting Interests at any time (as determined on the basis of Capital Commitments).

 

BDC: Carlyle Credit Solutions, Inc., a Maryland corporation that (i) has elected to be treated as a “business development company” under the Investment Company Act and (ii) is intended to operate as a continuously offered, privately placed, unlisted business development company.

 

BDC Charter: The BDC’s Articles of Amendment and Restatement (as amended from time to time).

 

BDC Investment Adviser: Carlyle Global Credit Investment Management L.L.C., a Delaware limited liability company that is an Affiliate of the General Partner, or any of its successors or permitted assignees, in its capacity as the investment adviser of the BDC.

 

BDC Shares: Shares of common stock, par value $0.01 per share, of the BDC.

 

  

§ 1.1

 

BDC Shareholder: Any Person that owns BDC Shares.

 

BDC Subscription Agreement: As defined in Section 2.4.

 

Beneficially Own: Has the meaning assigned to such term in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such rule (in each case, irrespective of whether or not such rule is actually applicable in such circumstance).

 

Benefit Plan Partner: Any Limited Partner that is a “benefit plan investor” as defined in the Plan Asset Regulations.

 

Business Day: A day which is not a Saturday, Sunday or other day on which banks are authorized or required by law to be closed in New York, New York.

 

Capital Account: As defined in Section 10.1(a).

 

Capital Commitment: As to any Limited Partner, the amount of aggregate capital commitment accepted by the General Partner, as determined in its sole discretion, in such Limited Partner’s Subscription Agreement, as such amount may be adjusted from time to time pursuant to Section 8.7 or otherwise pursuant hereto.

 

Capital Contribution: As to any Limited Partner at any time, the capital contributed to the Partnership by such Limited Partner pursuant to a Payment Notice or any other relevant provision of this Agreement.

 

Carlyle: The Investment Adviser, together with its Affiliates. The term “Carlyle” shall be deemed not to include any Issuer or any portfolio company of any other Carlyle Investment Fund.

 

Carlyle Investment Fund: Any vehicles managed or controlled by Carlyle, including any other Carlyle-sponsored funds, vehicles and accounts as well as registered investment companies, joint ventures or similar partnerships or arrangements, but excluding the Partnership.

 

  

§ 1.1

 

Carrying Value: With respect to any Partnership asset, the asset’s adjusted basis for U.S. federal income tax purposes, except that the Carrying Values of all Partnership assets shall be adjusted to equal their respective Fair Market Values (as determined by the General Partner), in accordance with the rules set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(f), except as otherwise provided herein, immediately prior to: (a) the date of the acquisition of any additional 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 property (other than a pro rata distribution) to a Partner; or (c) any other date specified by the Treasury Regulations, provided that adjustments pursuant to clauses (a), (b) and (c) above shall be made only if the General Partner reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Partners. The Carrying Value of any Partnership asset distributed to any Partner shall be adjusted immediately prior to 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 and Losses” rather than the amount of depreciation determined for U.S. federal income tax purposes.

 

Closing: The initial closing of Capital Commitments to the Partnership, to be held prior to the commencement of the Special Tender Offer.

 

Closing Date: April 4, 2022.

 

Code: The U.S. Internal Revenue Code of 1986, as amended from time to time.

 

Control (and its corollaries): The possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting shares, by contract or otherwise.

 

DAC 6: Council Directive 2018/882/EU, which amends Council Directive 2011/16/EU on administrative cooperation in the field of taxation and any law implementing such Council Directive, as amended from time to time.

 

Defaulting Limited Partner: As defined in Section 8.3.

 

Designated Individual: The individual appointed as the designated individual for purposes of Treasury Regulations Section 301.6223-1(b)(3)(ii).

 

Disabling Conduct: As defined in Section 4.3(a).

 

Disabling Event: Other than as permitted by Section 8.1(a) or pursuant to a removal and replacement of the General Partner as provided in Section 8.1(b), the transfer or assignment of all or any portion of the General Partner’s interest as the general partner of the Partnership, or the withdrawal from the Partnership, bankruptcy, commencement of liquidation proceedings, insolvency or dissolution of the General Partner.

 

  

§ 1.1

 

Disclosure Law: As defined in Section 11.4(c).

 

Electronic Signature: As defined in Section 11.12.

 

Enforcement Costs: As defined in Section 8.3.

 

ERISA: The U.S. Employee Retirement Income Security Act of 1974, as amended from time to time.

 

ERISA Partner: Any Limited Partner that (a) is a Benefit Plan Partner or (b) is designated as an ERISA Partner by the General Partner in writing at the request of such Limited Partner on or before the Closing Date.

 

Event of Dissolution: As defined in Section 0.

 

Fair Market Value: The fair market value of the Investments, determined as provided in Section 4.7.

 

FATCA: (a) Sections 1471 through 1474 of the Code, the Treasury Regulations thereunder, and official interpretations thereof; (b) any legislation, regulations or guidance enacted in any jurisdiction that seeks to implement a similar tax reporting or withholding tax regime (including the Common Reporting Standard issued by the OECD); (c) any intergovernmental agreement, treaty or other agreement between the Cayman Islands (or any Cayman Islands government body) and the United States or between any other jurisdictions (including any government bodies in such jurisdiction) entered into in order to comply with, facilitate, supplement or implement any legislation, regulations or guidance described in clause (a) or (b) above; and (d) any legislation, regulations or guidance that gives effect to any matter described in clauses (a) through (c) above.

 

Final Distribution: The distribution described in Section 9.3.

 

Fiscal Quarter: The calendar quarter or, in the case of the first fiscal quarter of the Partnership, the period commencing on the Closing Date and ending on the first calendar quarter end that is at least 60 calendar days after the Closing Date, and, in the case of the last fiscal quarter of the Partnership, ending on the date on which the winding-up of the Partnership is completed, as the case may be.

 

Fiscal Year: As defined in Section 2.11.

 

FOIA: As defined in Section 11.4(c).

 

  

§ 1.1

 

Fund Level Information: Fund level, aggregate performance information (i.e., aggregate cash flows, overall “IRRs,” cumulative amounts of a Limited Partner’s Capital Contributions to the Partnership and distributions received from the Partnership in each Fiscal Quarter, the aggregate value of Partnership assets attributable to a Limited Partner’s investment, the dollar amount of the total costs paid on an annual Fiscal Year end basis by a Limited Partner and the dollar amount of cash profit received by a Limited Partner from the Partnership on a Fiscal Year end basis), the name and address of the Partnership, the year of formation of the Partnership, a Limited Partner’s own Capital Commitment and Unpaid Capital Commitment, the aggregate Capital Commitments to the Partnership and the overall investment strategy of the Partnership. For the avoidance of doubt, Fund Level Information shall in no event include information relating to specific Issuers.

 

GAAP: Generally accepted accounting principles in the United States.

 

General Partner: CDL Tender Fund 2022-1 GP, L.L.C., a Delaware limited liability company, and an Affiliate of Carlyle, and any additional general partners or any general partners substituted therefor and admitted as a general partner of the Partnership in accordance with this Agreement and the Act, each in such Person’s capacity as a general partner of the Partnership.

 

General Partner Expenses: As defined in Section 6.1.

 

Governmental Plan: Any Limited Partner that (a) is a “governmental plan” within the meaning of Section 3(32) of ERISA or (b) is designated as a Governmental Plan by the General Partner in writing at the request of such Limited Partner on or before the Closing Date.

 

Indemnified Party: As defined in Section 4.3(a).

 

Initial BDC Subscription Agreement: As defined in Section 2.5.

 

Initial Investment: The Partnership’s acquisition of the BDC Shares pursuant to the Special Tender Offer.

 

Initial Investment Date: The date of the Initial Investment.

 

Initial Limited Partner: Carlyle SLP Ltd.

 

Interest: The entire limited partnership interest owned by a Limited Partner in the Partnership at any particular time, including the right of such Limited Partner to any and all benefits to which a Limited Partner may be entitled as provided in this Agreement, together with the obligations of such Limited Partner to comply with all the terms and provisions of this Agreement.

 

  

§ 1.1

 

Investment Adviser: Carlyle Global Credit Investment Management L.L.C., a Delaware limited liability company.

 

Investment Advisory Agreement: The Investment Advisory Agreement, dated as of the date of this Agreement, between the Partnership and the Investment Adviser, in the form attached hereto as Annex A, as the same may be amended and/or restated from time to time.

 

Investment Company Act: The U.S. Investment Company Act of 1940, as amended from time to time.

 

Investment Proceeds: All amounts received by the Partnership in respect of the BDC Shares or interest accrued thereon.

 

Investments: As defined in Section 4.1.

 

Issuer Indemnified Party: As defined in Section 4.4(f).

 

Issuer Indemnitor: As defined in Section 4.4(f).

 

Issuers: As defined in Section 4.1.

 

Limited Partners: The Persons listed from time to time on the books and records of the Partnership as limited partners of the Partnership that have been admitted as limited partners of the Partnership, including any Person who has been admitted to the Partnership as a substituted or additional Limited Partner, in each case in such Person’s capacity as a limited partner of the Partnership and for so long as such Person remains a Limited Partner, in accordance with this Agreement.

 

Lockup Period: As defined in Section 8.6.

 

Look Through Partner: A Limited Partner that is (a) a natural person, (b) a trust any portion of which is treated (under subpart E of part I of subchapter J of chapter 1 of subtitle A of the Code) as owned by a natural person (e.g., a grantor trust), (c) an organization described in Sections 401(a) or 501 of the Code, (d) a trust permanently set aside or to be used for a charitable purpose, (e) an entity disregarded for U.S. federal income tax purposes (e.g., a limited liability company with a single member) and owned (or treated as owned) by any Person described in clauses (a) through (d) above or clause (f) below or (f) a nominee for any Person described in clauses (a) through (e) above.

 

  

§ 1.1

 

Majority (or other specified percentage) in Interest: A “Majority in Interest” of the Limited Partners means, at any time, Limited Partners having in the aggregate more than 50% of the total Percentage Interest then entitled to vote in respect of the Partnership. Any other specified percentage in Interest of the Limited Partners means, at any time, Limited Partners having in the aggregate an amount equal to or greater than the specified percentage of the total Percentage Interest then entitled to vote in respect of the Partnership.

 

Non-Defaulting Partner: Any Partner other than a Defaulting Limited Partner.

 

Nonrecourse Deductions: As defined in Treasury Regulations Section 1.704-2(b). The amount of Partnership Nonrecourse Deductions for a Fiscal Year equals the net increase, if any, in the amount of Partnership Minimum Gain during that Fiscal Year, determined according to the provisions of Treasury Regulations Section 1.704-2(c).

 

OECD: The Organisation for Economic Cooperation and Development.

 

Offer Documents: As defined in Section 8.6(d).

 

Original Agreement: As defined in the recitals hereto.

 

Partner Nonrecourse Debt Minimum Gain: 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: As defined in Treasury Regulations Section 1.704-2(i)(2).

 

Partners: The General Partner and the Limited Partners.

 

Partnership: CDL Tender Fund 2022-1, L.P., a Delaware limited partnership.

 

Partnership Audit Rules: Subchapter C of Chapter 63 of the Code, and any subsequent amendment (and any Treasury Regulations or other guidance that may be promulgated in the future relating thereto) and, in each case, any provisions of state, local, and non-U.S. law governing the preparation and filing of tax returns, interactions with taxing authorities, the conduct and resolution of examinations by tax authorities and payment of resulting tax liabilities.

 

  

§ 1.1

 

Partnership Counsel: As defined in Section 11.16.

 

Partnership Entity: (a) The Partnership, (b) any entity in which the Partnership holds (directly or indirectly) an interest, (c) any member of any “expanded affiliated group,” as defined in Section 1471(e)(2) of the Code and the Treasury Regulations thereunder, of which any entity described in clause (a) or (b) is a member, (d) any “Related Entity”, as such term is defined in any intergovernmental agreement referenced in clause (c) of the definition of FATCA, of any entity described in clause (a) or (b) and (e) the General Partner and any of its Affiliates.

 

Partnership Minimum Gain: As defined in Treasury Regulations Sections 1.704-2(b)(2) and 1.704-2(d).

 

Partnership Representative: The partnership representative of the Partnership for purposes of the Partnership Audit Rules.

 

Payment Date: As defined in Section 3.1(c)(i).

 

Payment Notice: As defined in Section 3.1(c)(ii).

 

Percentage Interest: With respect to any Partner and any Investment, the ratio of such Partner’s aggregate Capital Contributions to that Investment to the total Capital Contributions of all Partners to that Investment, provided that for these purposes (but not for the purpose of determining Unpaid Capital Commitments) the aggregate Capital Contributions of each Partner to an Investment shall be adjusted to reflect any changes to the Capital Account of such Partner as a result of any withdrawal of capital pursuant to Section 8.7. The Percentage Interest of the Partners with respect to any Investment in respect of which the Partners have not made Capital Contributions shall be determined by the General Partner in accordance with the preceding sentence based on the amount of Capital Contributions the Partners would have contributed to fund the cost of such Investment.

 

Person: Any individual or entity, including any corporation, partnership, limited partnership, limited liability partnership, association, limited company, limited liability company, open-ended investment company, joint-stock company, trust (including the trustees thereof in their capacity as such), unit trust, unincorporated association, government or governmental agency or authority.

 

  

§ 1.1

 

Plan Asset Regulations: The regulations issued by the U.S. Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the U.S. Code of Federal Regulations, as modified by Section 3(42) of ERISA, as amended from time to time.

 

Prime Rate: The rate of interest per annum publicly announced from time to time by JPMorgan Chase (or any successor thereto) as its prime rate in effect at its principal office in New York City.

 

Pro Rata Share: As defined in Section 3.1(c)(iii).

 

Proceeding: As defined in Section 11.19.

 

Profits and Losses: 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) any items of income, gain, loss or deduction that are specially allocated pursuant to this Agreement 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 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 of any asset (other than an adjustment in respect of depreciation), 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 shall be an amount that 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.

 

  

§ 1.1

 

Public Pension Fund: any Limited Partner that is a retirement plan established or maintained for its employees (current or former) by the government of the United States, the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.

 

Public Pension Fund Reform Code of Conduct: As defined in Section 8.7(b).

 

Required Interest: As defined in Section 11.3(a)(ii).

 

Securities Act: The U.S. Securities Act of 1933, as amended from time to time.

 

SEC: The Securities and Exchange Commission.

 

Segregated Unit: Any fund, vehicle, account, managed account or other similar vehicle or arrangement organized or advised by any Carlyle business segment or unit, or in the management of which any Carlyle business segment or unit holds an operational or financial interest, that is managed by a Carlyle business segment or unit thereof which operates behind an information barrier designed to insulate confidential information between such business segment or unit and another business segment or unit that includes the Partnership.

 

Side Letters: As defined in Section 11.5.

 

Similar Law: Any U.S. federal, state, local, non-U.S. or other law or regulation that could cause the underlying assets of the Partnership or the BDC to be treated as assets of a Limited Partner by virtue of such Limited Partner’s Interest and thereby or otherwise subject the General Partner (or other Persons responsible for the investment and operation of the Partnership’s or the BDC’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.

 

Special Tender Offer: As defined in Section 2.4.

 

Special Tender Offer Purchase Price: As defined in Section 2.6.

 

Subscription Agreement: The Subscription Agreement executed by a Limited Partner in connection with its admission to the Partnership and accepted by the General Partner.

 

Subsequent Closings: As defined in Section 3.3.

 

  

§ 1.1

 

Tax Advances: As defined in Section 10.6.

 

Transfer (and its corollaries): A direct or indirect transfer in any form, including a sale, exchange, substitute, assignment, conveyance, pledge, charge, grant security over, mortgage, encumbrance, securitization, hypothecation or other disposition, any purported severance or alienation of any beneficial interest (including the creation of any derivative or synthetic interest), or the act of so doing, as the context requires.

 

Transferee: As defined in Section 8.2(a).

 

Transferor: As defined in Section 8.2(a).

 

Treasury Regulations: The U.S. federal income tax regulations promulgated under the Code, as such regulations may be amended from time to time. All references herein to specific sections of the Treasury Regulations shall be deemed also to refer to any corresponding provisions of succeeding Treasury Regulations.

 

United States or U.S.: The United States of America, its territories and possessions, any State of the United States, and the District of Columbia.

 

Unpaid Capital Commitment: As to any Partner as of any date, an amount equal to:

 

(a)          such Partner’s Capital Commitment, minus

 

(b)          the aggregate amount of such Partner’s Capital Contributions made (or deemed made) on or prior to such date.

 

For the avoidance of doubt, if the date of determination with respect to a Partner’s Unpaid Capital Commitment is after delivery of a Payment Notice but before the related Payment Date, the amount specified as payable by such Partner in such Payment Notice (as the same may be amended by a subsequent Payment Notice related thereto) shall not be included in such Partner’s Unpaid Capital Commitment unless, in the case of a Payment Notice for an Investment, such Investment is abandoned.

 

Upper Tier Indemnified Party: As defined in Section 4.4(i).

 

Upper Tier Indemnitor: As defined in Section 4.4(i).

 

Valuation Date: As defined in Section 2.6.

 

  

§ 1.2

 

Voting Interests: As of any date, the aggregate Interests of the Limited Partners then entitled to vote, excluding in each case the Interests of the General Partner and its Affiliates.

 

1.2.          Interpretation. Wherever from the context it appears appropriate, each term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in either the masculine or the neuter gender shall include the masculine, the feminine and the neuter. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provisions of this Agreement. To the fullest extent permitted by law, the terms, conditions, restrictions and other provisions of this Agreement shall be construed according to their plain and customary meanings, and not strictly for or against any party hereto (notwithstanding any rule of law requiring an agreement to be strictly construed against the drafting party), it being understood that each of the parties hereto is a sophisticated party and has had an adequate opportunity to retain counsel, to represent its interests and to otherwise negotiate the terms, conditions, restrictions and other provisions of this Agreement. To the fullest extent permitted by law, the terms, conditions, restrictions and other provisions of this Agreement shall be construed according to their plain and customary meanings, and not strictly for or against any party hereto (notwithstanding any rule of law requiring an agreement to be strictly construed against the drafting party), it being understood that each of the parties hereto is a sophisticated party and has had an adequate opportunity to retain counsel, to represent its interests and to otherwise negotiate the terms, conditions, restrictions and other provisions of this Agreement.

 

Article II

 

General Provisions

 

2.1.          Formation. The parties hereto continue a limited partnership formed on February 18, 2022 pursuant to the Act. The General Partner hereby continues as the general partner of the Partnership upon its execution of a counterpart of this Agreement. Each Person to be admitted as a limited partner of the Partnership shall be admitted as a Limited Partner at the time that (a) this Agreement or a counterpart hereof is executed by or on behalf of such Person and (b) a Subscription Agreement or a counterpart thereof is executed by or on behalf of such Person and accepted by the General Partner on behalf of the Partnership.

 

2.2.          Name. The name of the Partnership shall be “CDL Tender Fund 2022-1, L.P.” The General Partner is authorized to make any variations in the Partnership’s name which the General Partner may deem necessary or advisable, provided that (a) such name shall contain the words “Limited Partnership” or the letters “L.P.” or “LP” or the equivalent translation thereof, (b) such name shall not contain the name of any Limited Partner without the consent of such Limited Partner and (c) the General Partner shall promptly give written notice of any such variation to the Limited Partners.

 

  

§ 2.3

 

2.3.          Organizational Statements and Other Filings. If requested by the General Partner, the Limited Partners shall promptly execute all certificates, statements 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 appropriate to comply with all requirements for (i) the operation of a limited partnership under the laws of the State of Delaware, (ii) 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 (iii) all other filings required to be made by the General Partner in relation to the Partnership.

 

2.4.          Purpose. The sole purpose of the Partnership is to acquire BDC Shares, including through participation in a special third-party tender offer of approximately $100,000,000 in the aggregate to the BDC with respect to the BDC Shares, which shall commence no later than April 4, 2022 (or such later date as may be agreed to in writing by the Limited Partners and the Investment Adviser) (the “Special Tender Offer”), and to engage in such other activities as are permitted hereby or are incidental or ancillary thereto as the General Partner shall deem necessary or advisable, all upon the terms and conditions set forth in this Agreement. The Partnership shall not hold any investment other than the BDC Shares and cash.

 

2.5.          BDC Subscription Agreements. The Partnership (i) shall, in connection with the Closing, execute a subscription agreement (the “Initial BDC Subscription Agreement”), providing for the admission of the Partnership as a shareholder of the BDC and governing the BDC Shares acquired by the Partnership on the Initial Investment Date, and (ii) may, following the Initial Investment Date, execute one or more subscription agreements on one or more dates (each an “Additional BDC Subscription Agreement” and together with the Initial BDC Subscription Agreement, the “BDC Subscription Agreements”), governing any capital commitments of the Partnership to purchase BDC Shares and the BDC Shares acquired by the Partnership in connection with related drawdowns requested by the BDC. Any BDC Subscription Agreements shall be substantially similar in all material respects to each other subscription agreement providing for the admission of institutional investors to the BDC (other than names, dates and personal identifying information of the applicable subscriber and such other modifications as are reasonably appropriate in the discretion of the General Partner and the BDC).

 

  

§ 2.6

 

2.6.          Special Tender Offer Valuation Date. The Special Tender Offer shall be commenced at a specific price per share equal to the net asset value per BDC Share as determined in good faith by a pricing committee comprised of members of the board of directors of the BDC as of a specific valuation date (the “Valuation Date”) prior to commencement of the Special Tender Offer (such price per share referred to herein as the “Special Tender Offer Purchase Price”). The Limited Partners hereby acknowledge and agree that the Valuation Date shall be determined in the BDC’s discretion, provided that, in no event shall the Valuation Date be more than ten Business Days prior to the date of commencement of the Special Tender Offer. The BDC shall inform the Limited Partners of the Special Tender Offer Purchase Price promptly after determination on the Valuation Date, but in no event later than one Business Day following the Valuation Date. For the avoidance of doubt, the Limited Partners agree and acknowledge that the Special Tender Offer Purchase Price shall be treated as confidential information subject to the provisions and obligations of Section 11.4 of this Agreement.

 

2.7.          Specific Authorization. The Partnership, and the General Partner on behalf of the Partnership, may enter into and perform the Subscription Agreements, as well as any BDC Subscription Agreement, and any documents contemplated thereby or related thereto and any amendments thereto, without any further act, vote or approval of any Person, including any Partner, notwithstanding any other provision of this Agreement. The General Partner is hereby authorized to enter into the documents described in the preceding sentence and Side Letters and other agreements entered into in accordance with Section 11.5 on behalf of the Partnership, but such authorization shall not be deemed a restriction on the power of the General Partner to enter into other agreements and documents on behalf of the Partnership (subject to any other restrictions expressly set forth in this Agreement).

 

2.8.          Principal Place of Business; Other Places of Business. The Partnership shall maintain its principal place of business at, and its affairs shall be conducted from, such place or places as the General Partner may from time to time designate. The General Partner promptly will give written notice to the Limited Partners of any change in the principal place of business of the Partnership.

 

2.9.          Registered Office and Registered Agent. The Partnership shall maintain a registered office at c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, New Castle County, Wilmington, Delaware 19801. The General Partner may at any time change the location of the Partnership’s offices and may establish additional offices, provided that the General Partner will notify Limited Partners promptly of such change. The name and address of the Partnership’s registered agent is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, New Castle County, Wilmington, Delaware 19801.

 

§ 2.10

 

2.10.        Term. The Partnership commenced upon the filing of the Certificate of Limited Partnership and shall continue in business until dissolved, wound up and subsequently terminated. Notwithstanding the dissolution of the Partnership, the Partnership shall continue as a separate legal entity until cancellation of the Certificate of Limited Partnership.

 

2.11.        Fiscal Year. The fiscal year (“Fiscal Year”) of the Partnership shall be the calendar year or, in the case of the first Fiscal Year of the Partnership, the portion of the calendar year commencing on the Closing Date and, in the case of the last Fiscal Year of the Partnership, the portion of the calendar year ending on the date on which the winding-up of the Partnership is completed. The taxable year of the Partnership for U.S. federal income tax purposes shall be determined under Section 706 of the Code. The General Partner shall have the authority to change the ending date of the Fiscal Year if the General Partner determines in good faith that such change is necessary or appropriate, provided that the General Partner shall promptly give written notice of any such change to the Limited Partners.

 

2.12.        Withdrawal of Initial Limited Partner. Upon the admission of one or more Limited Partners to the Partnership at the Closing, the Initial Limited Partner shall (a) receive a return of any capital contribution made by the Initial Limited Partner to the Partnership, (b) be deemed to have withdrawn as the Initial Limited Partner of the Partnership and (c) have no further right, interest or obligation of any kind whatsoever as a Partner in the Partnership.

 

2.13.        Substitution. The Partnership shall not substitute the securities of the BDC for another investment unless the SEC has approved such substitution in the manner provided in Section 26 of the Investment Company Act.

 

  

§ 3.1

 

Article III

 

Capital Contributions; Distributions

 

3.1.          Capital Contributions.

 

(a) Capital Contribution in Connection with Special Tender Offer.

 

(i)          Prior to the commencement of the Special Tender Offer, and in connection with the Closing, each Limited Partner shall on the Payment Date make a Capital Contribution to the Partnership of its Pro Rata Share of the aggregate amount to be contributed by all Limited Partners on the Payment Date in order to fund the Initial Investment.

 

(ii)         Prior to the commencement of the Special Tender Offer, up to 100% of the respective Capital Commitments may be drawn down on the Payment Date, as determined in the General Partner's sole discretion. In connection with the foregoing, the Partnership shall utilize such Capital Contributions in order to fund the acquisition of the BDC Shares pursuant to the Special Tender Offer. In the event that (A) the Special Tender Offer is not accepted in full by BDC Shareholders, the General Partner shall promptly return such portion of each Limited Partner’s Capital Contribution that is not used in connection with the Special Tender Offer on a pro rata basis or (B) the Special Tender Offer is terminated for any reason, the General Partner shall promptly return the full amount of each Limited Partner’s Capital Contribution, provided that in each case with respect to clause (A) and clause (B), such amounts shall be returned no later than 30 calendar days thereof. In addition, the Unpaid Capital Commitment (if any) of each Limited Partner shall thereby be cancelled, and such Limited Partner shall have the option to (X) directly make a commitment to the BDC for the purchase of BDC Shares or (Y) enter into a subsequent Subscription Agreement with the Partnership. Furthermore, in connection with the foregoing, (1) each Limited Partner shall be provided with the opportunity to make a commitment to the BDC for the purchase of BDC Shares in the first close of the BDC’s new primary offering and (2) in the event that there is a subsequent special tender offer for BDC Shares, each Limited Partner shall be given a reasonable opportunity to participate, which for the avoidance of doubt shall exclude any quarterly redemptions offered by the BDC in the ordinary course of its business.

 

(iii)        The amount that a Limited Partner is required to contribute on the Payment Date shall be specified by the General Partner in a Payment Notice delivered to such Limited Partner in respect of the Payment Date. The General Partner shall have the authority to interpret in good faith any provision of this Agreement and make all necessary or otherwise appropriate adjustments to give effect to the intent of the provisions of this Section 3.1(a).

 

(iv)        Maximum Contributions. No Limited Partner shall in any event be required to make a Capital Contribution pursuant to this Section 3.1(a) on any date in an amount greater than its Unpaid Capital Commitment as of such date.

 

(b) Capital Contribution Subsequent to Initial Investment Date.

 

(i)          After the commencement of the Special Tender Offer, each Limited Partner may, but is not obligated to, make an additional Capital Commitment to the Partnership pursuant to a subsequent Subscription Agreement, subject to acceptance by the General Partner, in its sole discretion. In connection with the forgoing, the Partnership shall use the proceeds from drawdowns on such additional Capital Commitments to acquire additional BDC Shares in respect of such Limited Partner pursuant to a BDC Subscription Agreement.

 

  

§ 3.1

 

(ii)         The amount that a Limited Partner is required to contribute on the related Payment Date shall be specified by the General Partner in a Payment Notice delivered to such Limited Partner in respect of the Payment Date. The General Partner shall have the authority to interpret in good faith any provision of this Agreement and make all necessary or otherwise appropriate adjustments to give effect to the intent of the provisions of this Section 3.1(b).

 

(iii)        Maximum Contributions. No Limited Partner shall in any event be required to make a Capital Contribution pursuant to this Section 3.1(b) on any date in an amount greater than its Unpaid Capital Commitment as of such date.

 

(c) Related Definitions.

 

(i)          The “Payment Date” shall mean any date on which Partners are required to make Capital Contributions to the Partnership, including in connection with the Closing, which date:

 

(A)        shall be specified in a Payment Notice delivered to each Limited Partner from which a Capital Contribution is required on such date; and

 

(B)         shall be at least two Business Days after the date of delivery of a Payment Notice, provided, that with respect to any Capital Contributions to be made after the commencement of the Special Tender Offer, the Payment Date shall be at least ten Business Days (or such shorter notice period as agreed to in writing by the General Partner and each applicable Limited Partner) after the date of delivery of a Payment Notice.

 

(ii)         A “Payment Notice” shall mean a written notice requiring Capital Contributions, which notice shall be delivered to each Limited Partner, and shall:

 

(A)        include the amount that a Limited Partner is required to contribute on the Payment Date; and

 

(B)         specify such Limited Partner’s Pro Rata Share of the Capital Contributions required to be made by all Limited Partners and the method of calculation thereof in reasonable detail.

 

  

§ 3.2

 

(iii)        Pro Rata Share.

 

(A)        A Limited Partner’s “Pro Rata Share” of the aggregate Capital Contributions to be made by Limited Partners on any Payment Date shall mean the percentage that such Limited Partner’s Capital Commitment as of such date represents of the aggregate Capital Commitments as of such date of all such Limited Partners from which a Capital Contribution is required on such date.

 

(B)         [Intentionally Omitted].

 

(d) [Intentionally Omitted].

 

(e) [Intentionally Omitted].

 

(f) Wire Transfers etc. Capital Contributions shall be made by wire transfer of immediately available funds (including any fees related to such wire, which fees shall not be considered Capital Contributions) to the account specified in the related Payment Notice. Other than as set forth in this Agreement, no Partner shall be entitled to any interest or compensation by reason of its Capital Contributions or by reason of being a Partner. No Partner shall be required to lend any funds to the Partnership.

 

(g) Books and Records. The General Partner shall cause the books and records of the Partnership to be amended from time to time to reflect the addresses of Partners and any changes thereto and the Transfers of Interests and changes in Capital Commitments and Capital Contributions and returns of all or part thereof that are accomplished in accordance with the provisions of this Agreement.

 

(h) No Benefit to Creditors. Except as set forth in Section 4.2(c), the provisions of this Section 3.1 are intended solely to benefit the Partnership and the Partners and, to the fullest extent permitted by applicable law, shall not be construed as conferring any benefit upon any creditor of the Partnership (and no such creditor shall be a third party beneficiary of this Agreement), and no Partner shall have any duty or obligation to any creditor of the Partnership to make any Capital Contributions pursuant to this Section 3.1 or to cause the General Partner to deliver to any Partner a Payment Notice.

 

3.2.          [Intentionally Omitted].

 

3.3.          Subsequent Closings. The General Partner may, in its sole discretion, admit additional Limited Partners at one or more subsequent closings (“Subsequent Closings”). Notwithstanding any other provision in this Agreement, a Person shall be deemed admitted as an additional Limited Partner at a Subsequent Closing upon (i) the execution of this Agreement or a counterpart hereof by or on behalf of such Person and (ii) the execution of a Subscription Agreement or a counterpart thereof by or behalf of such Person and by the General Partner on behalf of the Partnership.

 

  

§ 3.4

 

3.4.          Distributions.

 

(a) Generally. Except as otherwise expressly provided here (including Section 8.6), no Partner shall have the right to withdraw capital from the Partnership or to receive any distribution or return of its Capital Contribution. Distributions of Partnership assets that are provided for herein shall be made only to Persons who, according to the books and records of the Partnership, are the holders of record of Interests on the date, determined by the General Partner acting in good faith, as of which the Partners are entitled to any such distributions.

 

(b) [Intentionally Omitted].

 

(c) Timing and Manner of Distributions. Distributions of Investment Proceeds shall be distributed as soon as practicable after the date such Investment Proceeds are received by the Partnership, but in no event later than 30 calendar days following receipt of such Investment Proceeds. Distributions shall be made by wire transfer of immediately available funds to the account specified in each Limited Partner’s Subscription Agreement or otherwise specified in writing by any Limited Partner to the General Partner.

 

(d) Withholding. The amount of any taxes paid by or withheld directly or indirectly from receipts of the Partnership (or any flow-through vehicle for relevant tax purposes in which the Partnership invests) shall be allocated among the Partners as reasonably determined by the General Partner and shall be deemed to have been distributed to each such Partner as Investment Proceeds to the extent that the payment or withholding of such taxes reduced Investment Proceeds otherwise distributable to such Partner (or gave rise to an obligation of such Partner to make a payment to the Partnership pursuant to this Section 3.4(d)), as the case may be, pursuant to this Section 3.4 (for this purpose taking into account with respect to each Partner any reduction in such taxes that occurs by reason of such Partner’s status). To the extent that such payment exceeds the cash distribution that such Partner would have received but for such payment or withholding, the General Partner shall notify such Partner as to the amount of such excess and such Partner shall make a prompt payment to the Partnership of such amount by wire transfer, which payment shall not constitute a Capital Contribution and, consequently, shall not reduce the Unpaid Capital Commitment or increase the Capital Account of such Partner.

 

(e) [Intentionally Omitted].

 

(f) Currency of Distributions. All cash distributions shall be made in U.S. dollars.

 

  

§ 4.1

 

(g) Distributions.

 

(i)          Each distribution of Investment Proceeds shall be made to the Partners in proportion to their respective Percentage Interests with respect to such Investment.

 

(ii)         Notwithstanding any provision to the contrary contained in this Agreement, the Partnership and the General Partner on behalf of the Partnership shall not be required to make a distribution to a Partner on account of its interest in the Partnership if such distribution would violate the Act or any other applicable law.

 

Article IV

 

The General Partner

 

4.1.          Investment Guidelines. The investment objective of the Partnership is to invest in the BDC Shares. The Partnership shall not hold any investment other than the BDC Shares or cash in connection therewith. The BDC Shares held by the Partnership are referred to herein as “Investments”, and the issuers, companies, projects, entities, and structures in which the BDC makes an underlying investment, together with the BDC as appropriate, are referred to herein as “Issuers”. At such time as any funds of the Partnership are not invested in the BDC Shares or distributed to the Partners, the Partnership shall maintain such funds in cash.

 

4.2.          Powers of the General Partner.

 

(a) Generally. The management, conduct of business, operation and policy of the Partnership shall be vested exclusively in the General Partner, which shall have the power by itself, and shall be authorized and empowered on behalf and in the name of the Partnership, to carry out any and all of the objects and purposes of the Partnership and to perform all acts and enter into agreements and perform all contracts and other undertakings that it may deem necessary or advisable or incidental thereto, all in accordance with and subject to the other terms of this Agreement. Notwithstanding the foregoing and to the fullest extent permitted by law, the General Partner shall have the right to delegate to one or more other Persons any or all of its rights, powers and duties as the General Partner shall determine, including, without limitation, the right to delegate to the Investment Adviser and appoint the Investment Adviser as contemplated herein and in the Investment Advisory Agreement, provided that the General Partner shall not be relieved of any of its obligations hereunder as a result of any such delegation.

 

(b) Enumerated Powers. Without limiting the foregoing general powers and duties, the General Partner is hereby authorized and empowered on behalf and in the name of the Partnership, or on its own behalf and in its own name, or through agents as may be appropriate, subject to the limitations contained elsewhere in this Agreement:

 

  

§ 4.2

 

(i)          to take all actions to cause the Partnership to invest in the BDC Shares and fulfill its obligations under the Special Tender Offer;

 

(ii)         to hire for usual and customary payments and expenses consultants, brokers, prime brokers, appraisers, rating agencies, attorneys, accountants, administrators, advisors, subadvisors, depositaries and such other agents (whether Affiliates or third parties) for itself or for the Partnership as it may deem necessary or advisable, and authorize any such agent to act for and on behalf of the Partnership;

 

(iii)        to act as (or appoint) the Partnership Representative and Designated Individual; have and exercise any authority permitted the Partnership Representative (and, to the extent reasonably practicable, the Designated Individual) under the relevant Partnership Audit Rules; take whatever steps the Partnership Representative deems necessary or desirable to perfect such designations and exercise such authority, including filing any forms and documents with the U.S. Internal Revenue Service or any other tax authority; and take such other action as may from time to time be required or authorized under applicable law;

 

(iv)        to make any and all elections for U.S. federal, state, local and non-U.S. tax matters, including any election pursuant to Section 6226 of the Code or any election to adjust the basis of Partnership property pursuant to Sections 734(b), 743(b) and 754 of the Code or, in each case, any comparable provisions of U.S. federal, state, local or non-U.S. law;

 

(v)         to deliver or cause to be delivered details in the prescribed form of any change in the Partnership which the General Partner is obliged to deliver pursuant to the provisions of the Act within the relevant time limit;

 

(vi)        to make, execute, deliver, record and file all certificates, instruments, documents, reports or statements, or any amendment thereto, of any kind necessary or desirable to accomplish the business, purpose and objectives of the Partnership, in each case as required by any applicable law, agreement or its business judgment;

 

(vii)       to authorize and delegate authority to any partner, director, officer, employee, Affiliate or other agent of the General Partner or agent or employee of the Partnership to act for and on behalf of the Partnership in all matters related or incidental to the foregoing; and

 

  

§ 4.3

 

(viii)      to carry on any other activities necessary to, in connection with, or incidental to any of the foregoing or the Partnership’s investment and other activities.

 

(c) No Borrowing or Encumbrance. The General Partner shall not have the right to cause the Partnership or any Persons through which Investments are made to borrow or otherwise incur indebtedness. Furthermore, the General Partner, on behalf of the Partnership, shall not be permitted to hypothecate, charge, mortgage, assign, transfer, make a collateral assignment or pledge or grant a comparable security interest to a lender or other credit party of the Partnership of (i) the assets of the Partnership, (ii) the Capital Commitments, (iii) the General Partner’s right to call Capital Contributions, (iv) the Partnership’s right to receive Capital Contributions or (v) all other rights, titles, interests, remedies, powers and privileges of the Partnership and/or the General Partner under this Agreement and each Subscription Agreement.

 

(d) [Intentionally Omitted].

 

(e) [Intentionally Omitted].

 

(f) [Intentionally Omitted].

 

4.3.          Limitation on Liability.

 

(a) The General Partner shall be subject to all of the liabilities of a general partner under the Act, provided that to the fullest extent permitted by law, none of the General Partner, the Partnership Representative and Designated Individual, the Initial Limited Partner, their Affiliates, nor their respective members, officers, directors, employees, operating executives, managers, consultants, advisors, senior advisors, stockholders, shareholders, partners (other than Limited Partners in their capacity as such), agents, and any other Person who serves at the request of the General Partner on behalf of the Partnership as an officer, director, partner, member, consultant, senior advisor, operating executive or employee of or advisor to any other entity (each, an “Indemnified Party”), shall be liable to the Partnership or to any Limited Partner for (i) any act performed or omission made by such Indemnified Party in connection with the conduct of the business and affairs of the Partnership or the BDC or otherwise in connection with this Agreement, a BDC Subscription Agreement, or the Special Tender Offer or the matters contemplated herein or therein, unless such act or omission resulted from “Disabling Conduct,” which shall mean fraud, bad faith, willful misconduct, gross negligence, material violation of applicable U.S. federal securities laws, conduct that is the subject of a criminal proceeding where the Indemnified Party had no reasonable basis to believe that such conduct was lawful or a willful and material breach of this Agreement by such Indemnified Party, or (ii) any mistake, negligence, dishonesty or bad faith of any broker or other agent of the Partnership or the BDC, unless such Indemnified Party was responsible for the selection or monitoring of such broker or agent and acted in such capacity with gross negligence.

 

  

§ 4.4

 

(b) To the extent that, at law or in equity or otherwise, the General Partner has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or to another Partner, the General Partner acting under this Agreement shall, to the fullest extent permitted by law, not be liable to the Partnership or to any such other Partner or any other Person bound by this Agreement for any act performed or omission made in good faith reliance on the provisions of this Agreement. To the fullest extent permitted by law, the provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of the General Partner and its Affiliates otherwise existing at law or in equity or otherwise, are agreed by the Partners to modify to that extent such other duties and liabilities of the General Partner and its Affiliates.

 

(c) Each Indemnified Party may consult with legal counsel and accountants selected by it and any act or omission suffered or taken by it on behalf of the Partnership or in furtherance of the interests of the Partnership or the BDC in good faith in reliance upon and in accordance with the advice of such counsel or accountants shall be full justification for any such act or omission, and to the fullest extent permitted by law shall be indemnified by the Partnership and fully protected and not liable to the Partnership or any Partner in so acting or omitting to act, provided that such counsel or accountants were selected with reasonable care.

 

(d) To the fullest extent permitted by law, an Indemnified Party shall incur no liability to the Partnership or any Partner (i) in acting in good faith upon any signature or writing believed by such Indemnified Party to be genuine and may rely in good faith on a certificate signed by an executive officer of any Person in order to ascertain any fact with respect to such Person or within such Person’s knowledge, (ii) for the accuracy or completeness of any information furnished by such Indemnified Party or other Indemnified Party regarding any Issuer where such information is obtained from a third party and not prepared by such Indemnified Party to the extent that such Indemnified Party acts in good faith and in reasonable reliance upon such information and that such Indemnified Party discloses those facts when it furnishes the information and (iii) for any error of judgment made in good faith by an officer or employee of such Indemnified Party, provided that such error does not constitute Disabling Conduct of such Indemnified Party or officer or employee of such Indemnified Party.

 

4.4.          Indemnification.

 

(a) To the fullest extent permitted by law, the Partnership shall indemnify and hold harmless each of the Indemnified Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including legal fees and amounts paid in satisfaction of judgments, in compromises and settlements, as fines and penalties and legal or other costs and reasonable expenses of investigating or defending against any claim or alleged claim) of any nature whatsoever, known or unknown, liquidated or unliquidated, whether or not in connection with proceedings by or in the right of the Partnership or any of the Partners, that are incurred by any Indemnified Party and arise out of or in connection with the affairs of the Partnership, the BDC or any activities undertaken in connection with the Partnership or the BDC, including acting as a director or the equivalent of any entity in or through which an Investment is made, directly or indirectly, or the performance by such Indemnified Party of any of the General Partner’s responsibilities hereunder or otherwise in connection with the matters contemplated herein, provided that:

 

§ 4.4

 

(i)          an Indemnified Party shall be entitled to indemnification hereunder only to the extent that such Indemnified Party’s conduct did not constitute Disabling Conduct; and

 

(ii)         the Partnership’s obligations hereunder shall not apply with respect to (A) any liability to pay tax arising out of the proper performance of the parties’ roles under this Agreement, provided that any costs and expenses relating to a dispute with a tax authority or taxes otherwise owed by the Partnership either directly or through any Investments, shall be subject to indemnification under this Section 4.4(a), provided, further that the Partnership’s obligations hereunder shall include tax of an Indemnified Party imposed on the amount of indemnification received hereunder, (B) claims, liabilities, damages, losses, costs and expenses arising solely out of disputes between or among the General Partner, its Affiliates, or their respective members, partners or shareholders (as the case may be), (C) [Intentionally Omitted], (D) General Partner Expenses, (E)  [Intentionally Omitted] or (F) claims, liabilities, damages, losses, costs and expenses arising solely out of conduct engaged in by an Indemnified Party in such Person’s capacity as a controlling person, director, officer, manager, partner, employee or agent of an Issuer to the extent that such conduct occurred after the first regularly-scheduled meeting of the board of directors of such Issuer following the time at which the Partnership had disposed of all of its investment in such Issuer and, in the case of a director, at which such director can practicably resign.

 

The termination of any proceeding by settlement shall not, of itself, create a presumption that any claims, liabilities, damages, losses, costs and expenses relating to such settlement or otherwise relating to such proceeding arose primarily from Disabling Conduct of any Indemnified Party. The satisfaction of any indemnification and any holding harmless pursuant to this Section 4.4(a) shall be from and limited to Partnership assets, and no Partner shall have any personal liability on account thereof. In determining whether an Indemnified Party’s conduct constituted Disabling Conduct, the Indemnified Party shall be entitled to rely on reports and written statements of the directors, officers, employees, agents, stockholders, members and partners of a Person in which the Partnership or the BDC holds an investment and any act or omission suffered or taken by such Indemnified Party arising out of or in connection with the affairs of the Partnership, the BDC, including acting as a director or the equivalent of any entity in which an investment is made in reliance upon and in accordance with such reports and written statements shall be full justification for any such act or omission, and the Indemnified Party shall be fully protected and not liable to the Partnership or any Partner in so acting or omitting to act unless the Indemnified Party knows that such reports or written statements were not true and complete in a respect that is material to the matter in question.

 

  

§ 4.4

 

(b) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification hereunder shall be advanced by the Partnership prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined ultimately that such Indemnified Party is not entitled to be indemnified hereunder. No advances shall be made by the Partnership under this Section 4.4(b) without the prior written approval of the General Partner (which may be given or withheld in the General Partner’s sole discretion) and, notwithstanding such approval, in respect of any action, suit or proceeding commenced by at least a Majority in Interest of the Limited Partners.

 

(c) The right of any Indemnified Party to the indemnification provided herein shall be cumulative of, and in addition to, any and all rights to which such Indemnified Party may otherwise be entitled by contract or as a matter of law or equity or otherwise and shall extend to such Indemnified Party’s successors, assigns and legal representatives.

 

(d) Except as otherwise provided in Sections 4.4(f)-(j) below, any Person entitled to indemnification from the Partnership hereunder shall first seek recovery under any other indemnity or any insurance policies in respect of Issuers by which such Person is indemnified or covered, as the case may be, but only to the extent that the indemnitor with respect to such indemnity or the insurer with respect to such insurance policy provides (or acknowledges its obligation to provide) such indemnity or coverage on a timely basis, as the case may be, and, if such Person is other than the General Partner, such Person shall obtain the written consent of the General Partner prior to entering into any compromise or settlement which would result in an obligation of the Partnership to indemnify such Person; and if liabilities arise out of the conduct of the affairs of the Partnership and any other Person for which the Person entitled to indemnification from the Partnership hereunder was then acting in a similar capacity, the amount of the indemnification provided by the Partnership shall be limited to the Partnership’s proportionate share thereof as determined in good faith by the General Partner in light of its fiduciary duties (as modified by this Agreement) to the Partnership and the Limited Partners. Without limiting Sections 4.4(f)-(j) below, any Person receiving indemnification payments under this Agreement shall reimburse the Partnership for such indemnification payments to the extent that such Person also receives payments under an insurance policy in respect of such matter.

 

  

§ 4.4

 

(e) [Intentionally Omitted].

 

(f) Notwithstanding anything to the contrary in this Section 4.4, to the maximum extent permitted by applicable law, to the extent that an Indemnified Party is also entitled to be indemnified by, or receive advancement of expenses from, any potential, current or former entity in which an Investment has been made (directly or indirectly) by the Partnership (an “Issuer Indemnitor”) at which any Indemnified Party is, was or will be serving as a director, officer, employee, partner, manager, member, trustee, agent, independent contractor, advisor or senior advisor (an “Issuer Indemnified Party”) at the request of the Partnership, the General Partner or any of their respective Affiliates, with regards to any applicable liabilities, it is intended that (i) such Issuer Indemnitor shall be the indemnitor of first resort (i.e., its obligations to such Indemnified Party are primary and any obligation of the Partnership (or any Affiliate thereof other than such Issuer Indemnitor) to provide indemnification or advancement for the same liabilities (including all interest, assessments and other charges paid or payable in connection with or in respect of such liabilities) incurred by such Indemnified Party are secondary), (ii) the Partnership’s obligation, if any, to indemnify or advance expenses to any Indemnified Party who is or was serving at the Partnership’s request as an Issuer Indemnified Party shall be reduced by any amount that such Indemnified Party collects as indemnification or advancement from the applicable Issuer Indemnitor and (iii) if the Partnership (or any Affiliate thereof other than an Issuer Indemnitor) pays or causes to be paid, for any reason, any amounts that should have been paid by an Issuer Indemnitor, then (x) the Partnership (or any such Affiliate thereof other than an Issuer Indemnitor) shall be fully subrogated to all rights of the relevant Indemnified Party with respect to such payment, and (y) each relevant Indemnified Party shall assign to the Partnership all of the Indemnified Party’s rights to advancement or indemnification with respect to such payment from or with respect to such Issuer Indemnitor.

 

(g) To the extent that any Issuer Indemnitor maintains an insurance policy or policies providing liability insurance coverage for any Issuer Indemnified Parties, and to the extent that an Indemnified Party serves in any such capacity and coverage may be available in such capacity under such insurance policy or policies, the Indemnified Party shall request that such Issuer Indemnitor cause such insurance policy or policies to be paid and exhausted to cover any liabilities (including all interest, assessments and other charges paid or payable in connection with or in respect of the foregoing) that could be subject to advancement or indemnification hereunder before payment of such losses may be made hereunder or under any director and officer liability insurance policies, general partnership liability insurance policies or other liability insurance policies that may be maintained by or on behalf of the Partnership, the General Partner or any of their respective Affiliates (other than such Issuer Indemnitor).

 

  

§ 4.4

 

(h) To the extent that Carlyle maintains an insurance policy or policies providing liability insurance coverage for any of the Indemnified Parties hereunder, and to the extent that an Indemnified Party serves in any capacity pursuant to which coverage may be available in such capacity under such insurance policy or policies, the Indemnified Party shall request that such insurance policy or policies be paid and exhausted to cover any liabilities (including all interest, assessments and other charges paid or payable in connection with or in respect of the foregoing) that could be subject to advancement or indemnification hereunder before payment of such losses may be made by the Partnership hereunder; provided, for the avoidance of doubt, that Carlyle shall be under no obligation to maintain any such insurance policy.

 

(i) Notwithstanding anything to the contrary in this Section 4.4, to the maximum extent permitted by applicable law, to the extent that an Indemnified Party is also entitled to be indemnified by, or receive advancement of expenses from, the General Partner or any of their respective Affiliates (other than the Partnership) (an “Upper Tier Indemnitor”) at which any Indemnified Party is, was or will be serving as a director, officer, employee, partner, manager, member, trustee, agent, independent contractor, advisor or senior advisor (an “Upper Tier Indemnified Party”), with regard to any such liabilities, it is intended that subject to Section 4.4(f), (A) the Partnership shall be the indemnitor of first resort (i.e., its obligations to such Indemnified Party are primary and any obligation of any Upper Tier Indemnitor to provide indemnification or advancement for the same liabilities (including all interest, assessments and other charges paid or payable in connection with or in respect of such liabilities) incurred by such Indemnified Party are secondary), (B) any Upper Tier Indemnitor’s obligation, if any, to indemnify or advance expenses to any Indemnified Party who is or was serving as an Upper Tier Indemnified Party shall be reduced by any amount that such Indemnified Party collects as indemnification or advancement from the Partnership and (C) if any Upper Tier Indemnitor pays or causes to be paid, for any reason, any amounts that could have been paid by the Partnership, then (x) such Upper Tier Indemnitor shall be fully subrogated to all rights of the relevant Indemnified Party with respect to such payment, and (y) each relevant Indemnified Party shall assign to such Upper Tier Indemnitor all of the Indemnified Party’s rights to advancement or indemnification with respect to such payment from or with respect to the Partnership.

 

(j) In lieu of any indemnification and/or advancement arrangements between the Partnership and an Indemnified Party, in its capacity as an Issuer Indemnified Party or Upper Tier Indemnified Party, as applicable, the General Partner or any of their respective Affiliates may enter into other similar arrangements that it determines necessary or advisable to ensure that the Indemnified Party will remain eligible to be indemnified by, or receive advancement of expenses from, the Partnership, the applicable Issuer Indemnitor or the applicable Upper Tier Indemnitor, as applicable.

 

(k) Notwithstanding anything to the contrary set forth in Sections 4.4(f)-(h) above, (but without limitation of the Partnership’s rights to subrogation therein) the Partnership shall be permitted to advance at any time any expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification hereunder in accordance with Section 4.4(b) above if the General Partner determines that any Issuer Indemnitor and/or other applicable insurance policy would not advance and/or otherwise cover such costs and expenses on a timely basis, in which case the other provisions of Sections 4.4(f)-(h) shall otherwise continue to apply.

 

  

§ 4.5

 

(l) In the case of any Governmental Plan, if a provision of this Agreement is inconsistent with restrictions under the laws applicable to such Governmental Plan with respect to the provision of indemnification by such Governmental Plan, then such Governmental Plan shall not be obligated to make any payment constituting such indemnification in excess of the indemnification which such Governmental Plan is permitted to make under such laws; provided that the Governmental Plan notifies the General Partner in writing of such restriction prior to its admission to the Partnership. For the avoidance of doubt, the liability of no other Limited Partner shall be increased as a result of the foregoing, and as such the liability of each such other Limited Partner shall be calculated as if such Governmental Plan had not been excused from making payments pursuant to this Section 4.4(l).

 

4.5.          General Partner as Limited Partner. The General Partner shall also be treated as a Limited Partner to the extent that it purchases or becomes a transferee of all or any part of the Interest of a Limited Partner, and to such extent shall be treated as a Limited Partner in all respects with respect to such Interest. Any Interest of a Limited Partner that is held by the General Partner or any of its Affiliates shall be deemed to have been voted and/or abstained on any matter in the same manner and proportions as the aggregate Interests of the other Limited Partners are voted and/or abstained on any matter.

 

4.6.          Conflicts of Interest; Other Activities. By acquiring an interest in the Partnership, each Limited Partner acknowledges and agrees that except as provided herein, this Agreement shall not be construed in any manner to preclude Carlyle, the General Partner, any of their Affiliates, or any of their respective officers, directors, employees, senior advisors, operating executives, partners, members, managers, consultants or advisors from engaging in any activity whatsoever permitted by applicable law, and such Persons shall have no obligation to account to the Partnership or the BDC for any profits derived from such activity (including any fiduciary duty) and the engagement by them in any such activity shall not constitute a breach of any duty hereunder or otherwise existing at law, in equity or otherwise. If any matter arises that the General Partner determines in its good faith judgment constitutes an actual conflict of interest, the General Partner may take such actions as may be necessary or appropriate to diminish or avoid the conflict. These actions may include, by way of example and without limitation, disposing of the security giving rise to the conflict of interest, appointing an independent fiduciary.

 

  

§ 4.7

 

4.7.          Valuation.

 

(a) All determinations of Fair Market Value to be made hereunder shall be made pursuant to the terms of this Section 4.7. For all purposes of this Agreement, all determinations of Fair Market Value that have been made in accordance with the terms of this Section 4.7 shall be final and conclusive on the Partnership and all Partners, their successors and assigns.

 

(b) [Intentionally Omitted].

 

(c) The Fair Market Value of any Investments shall be based on the “fair market value” (or other similar term) of such Investment as determined by the BDC.

 

4.8.          ERISA Covenant. For so long as there is any Limited Partner that is an ERISA Partner whose assets are subject to Title I of ERISA or Section 4975 of the Code, the General Partner shall use commercially reasonable efforts at all times to provide that investment by “benefit plan investors” in the Partnership will not be “significant” (as each such term is defined in the Plan Asset Regulations as modified by Section 3(42) of ERISA).

 

Article V

 

The Limited Partners

 

5.1.          Management.

 

(a) No Participation in Management. Except as expressly provided in this Agreement, no Limited Partner shall take part in or have the right or power to participate in the conduct of business, management or affairs of the Partnership, nor shall any Limited Partner have the power to sign for or bind the Partnership or deal with third parties on behalf of the Partnership without the consent of the General Partner. To the fullest extent permitted by law, the exercise by any Limited Partner of any right conferred herein shall not be construed to constitute participation by such Limited Partner in the conduct of the business of the Partnership so as to make such Limited Partner liable as a general partner of a limited partnership for the debts and obligations of the Partnership for purposes of the Act. Subject to applicable law, no Limited Partner owes any duty (fiduciary or otherwise) to the Partnership or any other Partner as a result of such Limited Partner’s status as a Limited Partner, provided that this in no way limits any express obligations of a Limited Partner provided for herein or in such Limited Partner’s Side Letter (if any), and/or Subscription Agreement.

 

(b) [Intentionally Omitted].

 

(c) [Intentionally Omitted].

 

  

§ 5.2

 

(d) Pass-Through Voting of BDC Shares. Notwithstanding anything to the contrary in this Agreement, including Section 7.4 and the notice and record date provisions thereof, whenever any consent or vote of the holders of the BDC Shares is solicited, the General Partner shall solicit the consent of the Limited Partners in writing and the General Partner shall cause the Partnership to provide its consent or vote to the BDC with respect to the BDC Shares then held by the Partnership in the same ratio as the Limited Partners’ consent under this Section 5.1(d) (such ratio to be determined in respect of the then-current portion of BDC Shares that are attributable to the respective Limited Partners). The General Partner shall be permitted to elect, with the consent of a Limited Partner, under and subject to the provisions of the BDC Charter, to hold all or any fraction of the Partnership’s interest in the BDC Shares in respect of such Limited Partner as a non-voting interest. Such pass-through voting rights shall conform to the requirements of Section 12(d)(1)(E) of the Investment Company Act.

 

5.2.          Liabilities of the Limited Partners. Except as provided by the Act or other applicable law and subject to the obligations to make Capital Contributions pursuant to Article III, to indemnify or reimburse the Partnership and the other Partners as provided in Section 10.6, and as otherwise expressly required by this Agreement or applicable law, no Limited Partner shall have any personal liability whatsoever in its capacity as a Limited Partner, whether to the Partnership, to any of the Partners, or to the creditors of the Partnership, for the debts, liabilities, contracts, or other obligations of the Partnership or for any losses of the Partnership. To the extent any Limited Partner is required by the Act or hereunder to return to the Partnership any distributions made to it and does so, such Limited Partner shall, to the maximum extent permitted by law, have a right of contribution from each other Limited Partner similarly liable to return distributions made to it hereunder or under the Act to the extent that such Limited Partner has returned a greater percentage of the total distributions made to it and so required to be returned by it than the percentage of the total distributions made to such other Limited Partner and so required to be returned by it.

 

5.3.          Limited Partners’ Outside Activities. Notwithstanding any duty otherwise existing at law or in equity, a Limited Partner shall be entitled to and may have business interests and engage in activities in addition to those relating to the Partnership, including business interests and activities in direct competition with the Partnership and the entities in which the Partnership invests, and may engage in transactions with, and provide services to, the Partnership or any such entity. None of the Partnership, any other Partner or any other Person shall have any rights by virtue of this Agreement in any business ventures of any Limited Partner.

 

  

§ 5.4

 

5.4.          Voting Rights. Due to investment policies applicable to Cliffwater Corporate Lending Fund (the “Cliffwater Limited Partner”) under the Investment Company Act, in the event that, and for so long as, the Cliffwater Limited Partner, together with Cliffwater LLC (“Cliffwater Adviser”) and any other funds or entities managed by Cliffwater Adviser (collectively with Cliffwater Adviser and the Investor, the “Covered Cliffwater Entities”), Beneficially Own more than 4.99% of the outstanding Interests, each of the Cliffwater Limited Partner and Cliffwater Adviser hereby irrevocably agree not to vote or cause to be voted, and forego and waive any “voting rights” any such Covered Cliffwater Entity has in respect of, such portion of the Interests that exceeds 4.99% of the then-outstanding Interests. For purposes of the foregoing, “voting rights” shall be rights deemed to be the equivalent to the right to vote for the election or removal of a director under applicable interpretations of the term “voting security” under the Investment Company Act by the SEC or its staff.

 

Article VI

 

Expenses and Fees

 

6.1.          Expenses.

 

(a) The Partnership shall not have any salaried personnel. Except as set forth in Section 6.1(c) and 6.1(d), the General Partner and its Affiliates, but not the Partnership or any Limited Partner, shall bear and be charged with (i) all organizational expenses incurred in connection with structuring, organizing, forming and establishing the Partnership and the General Partner, including any taxes not payable by the Limited Partners, and (ii) all costs, fees, expenses and liabilities related to the Partnership’s operation.

 

(b) The Partnership shall not be directly charged a management fee or incentive fee. Such management fee and incentive fee shall be charged at the level of the BDC.

 

(c) Notwithstanding anything to the contrary in this Agreement, the Partnership shall be responsible for satisfying its indemnification obligations set forth in Section 4.4.

 

(d) Notwithstanding anything to the contrary in this Agreement, the General Partner may withhold from any distributions amounts necessary to in its sole discretion, create appropriate reserves for expenses and liabilities, contingent or otherwise, of the Partnership with respect to indemnification obligations of the Partnership pursuant to Section 4.4.

 

6.2.          [Intentionally Omitted].

 

  

§ 7.1

 

Article VII

 

Books and Records and Reports to Partners

 

7.1.          Books and Records. The General Partner shall keep or cause to be kept complete and appropriate records and books of account. Except as otherwise expressly provided herein, such books and records shall be maintained on a basis which allows the proper preparation of the Partnership’s financial statements and tax returns. Each Limited Partner shall be required to provide such information to the General Partner as may be reasonably required to facilitate the preparation of such financial statements and tax returns. The books and records shall be maintained at the principal office of the Partnership and shall be retained by Carlyle for a period of five years after the dissolution of the Partnership. Any Limited Partner (other than a Defaulting Limited Partner) or its duly authorized representatives shall be permitted to inspect the books and records of the Partnership for any proper purpose reasonably related to such Limited Partner’s Interest consistent with reasonable confidentiality restrictions established by the General Partner, at any reasonable time during normal business hours upon reasonable advance notice and at the sole cost and expense of such Limited Partner.

 

7.2.          Income Tax Information.

 

(a) The General Partner shall prepare and send, or cause to be prepared and sent, within 90 calendar days after the end of each Fiscal Year, subject to reasonable delays in the event of the late receipt of any necessary financial or tax statements from any Person in which the Partnership holds Investments, to each Person who was a Partner at any time during such Fiscal Year, a U.S. Internal Revenue Service Schedule K-1, “Partner’s Share of Income, Credits, Deductions, Etc.” or of any successor schedule or form, for such Person. The General Partner shall provide to any Limited Partner any other information reasonably available to the General Partner that such Limited Partner may reasonably request and that is required for the purpose of applying for refunds of withholding taxes or for other tax reporting purposes, in each case arising solely by reason of the activities of the Partnership or the BDC. For the avoidance of doubt, the General Partner has the exclusive authority to file (or cause to be filed) a tax return for the Partnership and to appoint or designate, and revoke (or otherwise modify) the appointment or designation, of a Partnership Representative and/or Designated Individual.

 

(b) Each Limited Partner shall on request of the General Partner provide, and hereby authorizes the General Partner to obtain on its behalf, such information (including without limitation tax identification or reference numbers) as may reasonably be required in connection with (i) preparing or making any tax returns which the Partnership, the BDC or the General Partner is obliged to file in relation to the activities and Investments of the Partnership or the BDC or facilitating the assessment of any Person in respect thereof, (ii) any tax election of the Partnership, the BDC or any Issuer or (iii) any audit, examination or investigation (including any judicial or administrative proceeding) of the Partnership, the BDC or any Issuer. Each Partner shall file all applicable tax returns with respect to such Partner’s distributive share of any item of the Partnership’s income, gain, loss, deduction or credit in a manner consistent with the Partnership’s tax treatment of such item.

 

  

§ 7.3

 

(c) In the event the Partnership shall be the subject of an income tax audit by any U.S. federal, state or local authority, to the extent the Partnership is treated as an entity for purposes of such audit, including administrative settlement and judicial review, the Partnership Representative (and any Designated Individual) shall have sole authority to make elections and otherwise act on behalf of the Partnership, and its decision shall be final and binding upon the Partnership and each Partner thereof, provided, however, that the Partnership Representative (and any Designated Individual), if a person other than the General Partner, shall act in such capacity solely at the direction of the General Partner.

 

7.3.          Reports to Partners. The General Partner shall send to each Limited Partner a copy of each report and notice that is generally delivered to all BDC Shareholders. In addition, subject to Sections 11.4(d) and 11.4(e), within 90 calendar days (subject to reasonable delays in the event of the late receipt of any necessary financial statements from the BDC), after the end of each Fiscal Quarter of each Fiscal Year of the Partnership from and after the first year in which the Partnership holds an Investment, the General Partner shall send to each Person who was a Partner during such period:

 

(A)         a balance sheet as of the end of such period;

 

(B)         a statement of income or loss and a statement of Partners’ capital for such period; and

 

(C)         such Partner’s Capital Account balance.

 

7.4.          Partnership Meetings.

 

(a) The General Partner may call a special meeting of the Partnership, which may be combined with any meeting of the BDC, by giving at least 14 calendar days’ notice of the time and place of such meeting to each Limited Partner, which notice shall set out the agenda for such meeting. The General Partner shall promptly call a special meeting of the Partnership if a Majority in Interest of the Limited Partners request that a special meeting of the Partnership be so called. The General Partner shall give at least 21 calendar days’ notice of the time and place of such meeting to each Limited Partner, which notice shall set out the agenda for such meeting.

 

  

§ 7.4

 

(b) Any action required to be, or which may be, taken at any special meeting by the Partners may be taken in writing without a meeting if consents thereto are given by the General Partner and Limited Partners holding Interests in an amount not less than the amount that would be necessary to take such action at a meeting. Any meeting of the Partnership may be held in person or by means of telephone or similar communications equipment by means of which all Persons participating in such meeting can hear each other.

 

(c) A Limited Partner may vote its Interest at any meeting either in person or by a proxy which such Limited Partner has duly executed in writing. The General Partner may permit Persons other than Partners to observe a meeting, provided that no such Person shall be entitled to vote its Interest unless pursuant to a duly executed proxy in writing as aforesaid.

 

(d) The chairperson of any special meeting shall be a Person affiliated with and designated by the General Partner. A Person designated by the General Partner shall keep written minutes of all of the proceedings and votes of any such meeting. To the extent that the rules and procedures for the conduct of a meeting of the Limited Partners are not prescribed by this Agreement, such rules and procedures shall be determined by the chairperson of the meeting.

 

(e) The General Partner may set in advance a record date for determining the Limited Partners entitled to notice of and to vote at any meeting or entitled to express consent to any action in writing without a meeting. No record date shall be less than 10 nor more than 60 calendar days prior to the date of any meeting to which such record date relates nor more than 10 calendar days after the date on which the General Partner sets the record date for any action by written consent.

 

(f) Any resolution, consent, approval or appointment made by the Limited Partners in accordance with the provisions of this Agreement (including a consent requested pursuant to Section 5.1(d) of this Agreement) shall be binding on all Limited Partners and their respective heirs, executors, administrators or other legal representatives, successors and assigns, whether or not, as applicable, such Limited Partner was present or represented by proxy at the meeting at which such resolution was passed (or, with respect to Section 5.1(d), whether or not such Limited Partner responded to the solicitation for a written consent) and whether or not such Limited Partner voted against such resolution.

 

  

§ 8.1

 

Article VIII

 

Transfers, Withdrawals and Default

 

8.1.          Transfer and Withdrawal of the General Partner.

 

(a) Voluntary Transfer. Except as otherwise provided in this Agreement, without the consent of 80% in Interest of the Limited Partners, the General Partner shall not have the right to Transfer all or any portion of its interest as the general partner of the Partnership to Persons other than its Affiliates and the General Partner shall not have the right to withdraw from the Partnership, provided that without the consent of the Limited Partners the General Partner may, at the General Partner’s expense, be reconstituted as or converted into a corporation, partnership or other form of entity (any such reconstituted or converted entity being deemed to be the General Partner for all purposes hereof) by merger, consolidation, conversion or otherwise, or Transfer all or any part of its interest as general partner of the Partnership to one or more of its Affiliates so long as (i) such reconstitution, merger, consolidation, conversion or Transfer does not have material adverse tax or legal consequences for the Limited Partners (other than Affiliates of the General Partner), and (ii) such other entity shall have assumed in writing all or part, as applicable, all of the obligations of the General Partner under this Agreement, the Subscription Agreements and any other related agreements of the General Partner. In the event of a Transfer by a General Partner of all of its interest as a general partner of the Partnership in accordance with this Section 8.1(a), upon execution of a counterpart to this Agreement or an instrument pursuant to which the Transferee agrees to adhere to and be bound by this Agreement, the Transferee of such interest shall be substituted in its place and admitted as a general partner of the Partnership effective immediately prior to such assignment or other transfer and such successor is hereby authorized to and shall continue the Partnership without dissolution, and immediately thereafter the General Partner shall withdraw as a general partner of the Partnership and shall cease to be the general partner of the Partnership. The foregoing provisions of this Section 8.1(a) shall not prevent the General Partner from assigning by way of security or otherwise pledging, charging or granting security over its rights under this Agreement pursuant to the terms of any transaction contemplated by Sections 4.2(e) and 4.2(f) or otherwise as permitted by this Agreement.

 

(b) Removal/Dissolution with or without Cause. (i) A Majority in Interest of the Limited Partners may, at their option, require the removal, effective as of a date not less than 90 calendar days from the date of notice to the General Partner of such removal, of the General Partner from the Partnership and the substitution of another Person as general partner of the Partnership in lieu thereof (which successor general partner shall be approved by a Majority in Interest of the Limited Partners), and (ii) 80% in Interest of the Limited Partners may, at their option at any time, require the removal, effective as of a date not less than 60 calendar days from the date of notice to the General Partner of such removal, of the General Partner from the Partnership and the substitution of another Person as general partner of the Partnership in lieu thereof (which successor general partner shall be approved by 80% in Interest of the Limited Partners), provided that, with respect to any such removal pursuant to clause (i) or clause (ii), any successor to the General Partner shall be substituted prior to, or at the same time as, the removal of the General Partner, and provided, finally, that if the General Partner is removed and no successor is appointed, the Partnership shall be dissolved and wound up in accordance with the provisions of Section 9.2. The successor general partner of the Partnership shall be deemed admitted as the general partner of the Partnership upon its execution of a counterpart to this Agreement, effective immediately prior to the removal of the replaced General Partner or contemporaneously with the removal of the replaced General Partner, and is hereby authorized to, and shall, continue the business of the Partnership.

 

  

§ 8.1

 

(c) Disabling Event. The General Partner shall cease to be the general partner of the Partnership upon the occurrence of a Disabling Event, and thereafter, except as required by applicable law, neither the General Partner nor its successors in interest shall have any of the powers, obligations or liabilities of a general partner of the Partnership under this Agreement or under applicable law. Subject to Section 9.1(iii), upon the occurrence of any Disabling Event the Partnership shall be wound up and thereafter dissolved in accordance with the provisions of Section 9.2. The General Partner shall promptly give notice to the Limited Partners of the occurrence of any Disabling Event. If the General Partner shall cease to be the general partner of the Partnership upon the occurrence of a Disabling Event and a Majority in Interest of the Limited Partners shall determine to appoint a successor general partner to continue the business of the Partnership, notice of that determination shall be given to the General Partner by a party authorized by such Limited Partners to give such notice on behalf of such Limited Partners.

 

(d) [Intentionally Omitted]

 

(e) [Intentionally Omitted]

 

(f) [Intentionally Omitted]

 

(g) No Post-Removal Liabilities. Any General Partner that is removed or ceases to be a general partner of the Partnership upon the occurrence of a Disabling Event, or Transfers, in accordance with this Agreement, all of its interest as general partner of the Partnership or otherwise ceases to be a general partner of the Partnership shall remain liable for obligations and liabilities incurred on account of its activities as General Partner prior to the time of such removal, but shall have no such liability in respect of obligations or liabilities incurred by the Partnership thereafter since it is then no longer a general partner of the Partnership.

 

  

§ 8.2

 

(h) Continued Indemnification. The removed General Partner and its Affiliates and any of their members, officers, directors, employees, operating executives, stockholders, shareholders, partners, managers, consultants, advisors, senior advisors and any other Person who served at the request of the removed General Partner on behalf of the Partnership as an officer, director, partner, member or employee of any other entity shall continue to be entitled to indemnification hereunder pursuant to Section 4.4, but only with respect to claims, liabilities, damages, losses, costs and expenses (i) relating to Investments made prior to the removal of the replaced General Partner or (ii) arising out of or relating to their activities during the period prior to the removal of the replaced General Partner as the general partner of the Partnership or otherwise arising out of the replaced General Partner’s status as general partner of the Partnership or any of its Affiliates.

 

(i) Amendments. Notwithstanding anything to the contrary set forth herein, any amendment on or after the effective date of the replacement of the General Partner to (i) any provision of this Agreement that adversely affects the replaced General Partner’s, or its Affiliates’ rights under this Agreement and is not equally adverse to any other Partner or (ii) any of Sections 8.1(g) through 8.1(j) shall require the written consent of the removed General Partner.

 

(j) Change of Partnership Name. Notwithstanding any provision in this Agreement, the removed General Partner shall have the right, without the consent of any Limited Partner or the successor general partner of the Partnership or any other Person, to cause the name of the Partnership to be changed so that it does not include the word “Carlyle” or any variation thereof, and any successor general partner of the Partnership or liquidating trustee of the Partnership shall make any filings and any amendments to this Agreement and the Certificate of Limited Partnership to implement such changes or related thereto, and thereafter the Partnership shall not have the right to use the name “Carlyle” or any abbreviation or derivation thereof.

 

8.2.          Transfers/Substitutions by Limited Partners.

 

(a) A Limited Partner may not Transfer its Interest (including any right to receive distributions or allocations in respect of such Interest) or Capital Commitments, whether voluntarily, involuntarily, by merger, by operation of law or otherwise in whole or in part to any Person (a “Transferee”) without the prior written consent of the General Partner, which shall not be unreasonably withheld. Notwithstanding anything in this Section 8.2 to the contrary, the General Partner shall not withhold its consent to any Transfer by a Limited Partner of all or a portion of its Interest or Capital Commitments to a Person if such Person is an Affiliate of such Limited Partner. The foregoing sentence is subject to (I) the Transferee giving, to the General Partner’s reasonable satisfaction, the same representations, warranties and undertakings as the Transferor has given in its Subscription Agreement (to the extent applicable) or as the General Partner shall otherwise reasonably require and (II) the Transferee or substitute Limited Partner agreeing to assume the obligations of the Transferor. Notwithstanding the foregoing, unless agreed to by the General Partner in writing, no Limited Partner may enter into, create, sell or Transfer any financial instrument or contract the value of which is determined in whole or in part by reference to the Partnership or the BDC (including the amount of Partnership distributions, the value of Partnership assets, or the results of Partnership operations), within the meaning of Treasury Regulations Section 1.7704-1(a)(2)(i)(B).

 

  

§ 8.2

 

(b) No Transferee may be admitted as a substitute Limited Partner in the Partnership without the consent of the General Partner, which shall not be unreasonably withheld. A Transferee that is not admitted as a substitute Limited Partner shall be entitled only to allocations and distributions with respect to the Interest Transferred to it as if it were a substitute Limited Partner, provided that notice has been given to the General Partner by the Transferor that such allocations and distributions shall be made to the Transferee instead of the Transferor, and provided, further, that the Transferee shall, to the fullest extent permitted by law, have no rights to vote such Interest, to participate in the conduct of the business or management of the Partnership or to any information or accounting of the affairs of the Partnership and shall not have any of the other rights of a Partner pursuant to this Agreement, which rights shall remain with the Transferor.

 

(c) Notwithstanding anything in this Section 8.2 to the contrary, on or after the two year anniversary of the consummation of the Special Tender Offer, upon the written request of any Limited Partner that was admitted to the Partnership at or prior to the commencement of the Special Tender Offer, the General Partner shall use commercially reasonable efforts to help facilitate a Transfer by such Limited Partner of all or any portion of such BDC Shares held by the Partnership that are attributable to such Limited Partner to a Person. The foregoing sentence is subject to (I) such recipient giving, to the General Partner’s reasonable satisfaction, such representations, warranties and undertakings as the General Partner shall reasonably require, (II) the recipient of such BDC Shares agreeing to assume such obligations in respect of the BDC Shares as the General Partner shall reasonably require, and (III) the Limited Partner reimbursing the Partnership for any related costs or expenses incurred by the Partnership, the General Partner, the Manager or their Affiliates in respect of the foregoing.

 

(d) [Intentionally Omitted].

 

(e) The General Partner shall prohibit any Transfer (and shall not recognize any such Transfer) if such Transfer would cause the Partnership to be treated as a “publicly traded partnership” that is taxable as a corporation within the meaning of Section 7704 of the Code and the regulations promulgated thereunder. Notwithstanding any other provision of this Section 8.2 to the contrary, the General Partner may withhold its consent to any Transfer by a Limited Partner of all or a portion of its Interest or Capital Commitments if the General Partner determines that the Partnership could have a “substantial built in loss” within the meaning of Section 743(d) of the Code immediately after such Transfer, unless such Limited Partner seeking such Transfer agrees in writing to reimburse the General Partner and the Partnership for all reasonable accounting costs of the General Partner and the Partnership arising from or relating to such Transfer.

 

  

§ 8.3

 

(f) Promptly upon request therefor by the General Partner, a Transferee shall provide the General Partner with the information specified in Treasury Regulations Section 1.743-1(k)(2) (or any successor provision) in the manner specified by such regulation, whether or not an election under Section 754 of the Code is in effect with respect to the Partnership, and any other information reasonably requested by the General Partner in connection with adjustments made under Section 743 of the Code or an election made under Section 743(e) of the Code. If the General Partner informs the Transferee that the Partnership has made an election to be treated as an “electing investment partnership” (within the meaning of Section 743(e) of the Code), the Transferee shall (i) promptly upon request therefor by the General Partner, provide to the General Partner such information as shall enable the Partnership to comply with its obligations under Section 6031(f) of the Code with respect to its Interest and (ii) cooperate with the General Partner to maintain that status and shall not take any action that would be inconsistent with the treatment of the Partnership as an “electing investment partnership.” If the General Partner informs the Transferor that the Partnership has made an election to be treated as an “electing investment partnership” (within the meaning of Section 743(e) of the Code), the Transferor shall promptly upon request therefor by the General Partner, provide to the General Partner such information as shall enable the Partnership to comply with its obligations under Section 6031(f) of the Code with respect to the Interest Transferred by such Transferor.

 

(g) [Intentionally Omitted].

 

(h) To the fullest extent permitted by law, any attempted Transfer not made in accordance with this Section 8.2 shall be null and void.

 

8.3.          Defaulting Limited Partners. If any Limited Partner (a) fails to make, when due, any portion of the Capital Contribution required to be contributed by such Limited Partner pursuant to this Agreement, or any Subscription Agreement or to make any other payment required to be made by it hereunder when required to be made, and such failure continues for seven calendar days, (b) purports to Transfer all or any part of its Interest other than in accordance with this Agreement or (c) otherwise commits a willful and material breach of this Agreement, then such Limited Partner shall be deemed a “Defaulting Limited Partner” and hereby acknowledges and agrees that it shall also be treated as a “Defaulting Investor” under the terms of any BDC Subscription Agreement governing such portion of such BDC Shares held by the Partnership that are attributable to such Limited Partner and that such portion of such BDC Shares held by the Partnership that are attributable to such Limited Partner shall be subject to the remedies available to the BDC under such BDC Subscription Agreement, to the fullest extent permitted by such BDC Subscription Agreement. In connection with the foregoing, the General Partner may in its sole discretion institute a lawsuit against any Defaulting Limited Partner for specific performance of its obligation to make Capital Contributions and any other payments to be made hereunder by a Limited Partner and to collect any overdue amounts hereunder, and each Limited Partner agrees to pay on demand all costs and expenses (including reasonable attorneys’ fees) incurred by or on behalf of the Partnership in connection with the enforcement of this Agreement, any Subscription Agreement against such Limited Partner as a result of a default by such Limited Partner (such costs and expenses, “Enforcement Costs”). No course of dealing between the General Partner and any Defaulting Limited Partner and no delay in exercising any right, power or remedy conferred in this Section 8.3 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. No breach by any party of its obligations under this Agreement, any Subscription Agreement shall excuse the performance by any other party of its obligations under this Agreement, any Subscription Agreement.

 

  

§ 8.4

 

8.4.          Further Actions. The General Partner, without the consent of any other Partner or any other Person, shall cause this Agreement, any Subscription Agreement to be amended as appropriate to reflect the occurrence of any of the transactions referred to in this Article VIII as promptly as is practicable after such occurrence. Notwithstanding any other provision of this Agreement, the General Partner shall have full authority without the consent of any other Person, including any other Partner, to make all adjustments to the Percentage Interests, Capital Accounts, Capital Commitments, Unpaid Capital Commitments, and Capital Contributions of the Partners as may be necessary or otherwise appropriate (as determined by the General Partner in a manner consistent with its fiduciary duties under this Agreement and the Act) to give effect to and reflect the occurrence of any of the transactions referred to in this Article VIII, so long as such adjustment does not materially and adversely affect the interests of the Non-Defaulting Partners or the remaining Limited Partners, as applicable.

 

8.5.          Admissions and Withdrawals Generally. Except as expressly provided in this Agreement, no Partner shall have the right to withdraw from the Partnership or to withdraw any part of its Capital Account or to be repaid any part of its Capital Contributions and no additional Partner may be admitted to the Partnership. Each new Partner shall be admitted as a Partner upon the execution by or on behalf of it, and acceptance thereof by the General Partner, of an agreement pursuant to which it adheres to and becomes bound by the terms of this Agreement. The names and addresses of all Persons admitted as Partners and their status as General Partner or a Limited Partner shall be maintained in the records of the Partnership. The General Partner may in its absolute and sole discretion, waive any requirements or conditions to admission of Limited Partners as set out in this Agreement from time to time.

 

  

§ 8.6

 

8.6.          Quarterly Tender Offers.

 

(a) During the period starting on the Initial Investment Date through the date that falls on the 18-month anniversary of the Initial Investment Date (the “Lockup Period”), the Partnership, as a BDC Shareholder, shall not be permitted to tender any BDC Shares held by the Partnership in connection with any issuer tender offer for BDC Shares. Following the Lockup Period, the Partnership shall pass through any tender offers for BDC Shares, including any of the BDC's issuer tender offers, to the Limited Partners and shall submit tender requests to the BDC in accordance with the instructions of the Limited Partners.

 

(b) The Partnership shall distribute proceeds received in connection with BDC Shares sold in any tender offer promptly to the Limited Partners following its receipt of proceeds.

 

(c) In the event that the BDC conducts one or more tender offers as required by Section 61(a)(2)(D)(ii) of the Investment Company Act, in connection with a change in the BDC’s asset coverage requirements, neither the Partnership nor any Limited Partner in its individual capacity shall participate in such tender offer(s).

 

(d) Each Limited Partner and the Partnership shall use its reasonable best efforts to cause to be commenced and completed the Special Tender Offer. The Limited Partners shall cooperate with the Partnership and the Investment Adviser to (i) prepare offer documents relating to the Special Tender Offer, including without limitation a Schedule TO-T, offer to purchase, letter of transmittal, and other required or customary ancillary documents and exhibits (collectively, with any amendments or supplements thereto, the “Offer Documents”), and (ii) to respond to comments from the SEC with respect to the Offer Documents as promptly as reasonably practicable, provided that no (i) disclosure specific to a particular Limited Partner or materials that will be binding directly on a particular Limited Partner shall be included in the Offer Documents or (ii) response to any SEC comment that relates to a particular Limited Partner shall be submitted to the SEC, in each case, without the written consent of the relevant Limited Partner, which consent shall not be unreasonably withheld. The Limited Partners, the Partnership, and the Investment Adviser shall use commercially reasonable efforts to ensure that the Offer Documents be initially filed with the SEC and distributed to BDC shareholders prior to April 4, 2022 (or such later date as may be agreed to in writing by the Limited Partners and the Investment Adviser).

 

  

§ 8.7

 

(e) Each of the Limited Partners shall furnish to the Partnership and the Investment Adviser all information as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the Offer Documents (including by responding to comments from the SEC). No filing of, or amendment or supplement to, the Offer Documents shall be made by the Partnership without providing the Limited Partners a reasonable opportunity to review and comment thereon.

 

(f) The Special Tender Offer shall be conducted in accordance with the applicable requirements of Regulations 14D and 14E under the Securities Exchange Act of 1934, as amended.

 

(g) The Limited Partners agree that the Special Tender Offer shall not be extended; except that, the Special Tender Offer shall be extended for the minimum period of days as required by applicable law, including any rule, regulation, interpretation or position of the SEC or its staff or as may be necessary to resolve any comments of the SEC or its staff, in each case, as applicable to the Special Tender Offer or related offer documents.

 

8.7.          Withdrawals.

 

(a) A Limited Partner may be required to completely or partially withdraw from the Partnership if (i) in the reasonable judgment of the General Partner based upon written advice of counsel, by virtue of that Limited Partner’s Interest, the assets of the Partnership would be reasonably likely to be characterized as assets of an employee benefit plan for purposes of the Plan Asset Regulations, Title I of ERISA, Section 4975 of the Code or any applicable Similar Law, whether or not such Limited Partner is subject to Title I of ERISA, Section 4975 of the Code or any Similar Law or (ii)(A) it is reasonably likely that such Limited Partner’s continued participation in the Partnership would cause a violation of any law, regulation or governmental order to which the Partnership, the General Partner, any Issuer or any of their Affiliates is subject and such violation would have a material adverse effect on any of the aforementioned Persons, (B) the Partnership or any Partner is reasonably likely to be subject to any requirement to register under the Investment Company Act, (C) a significant delay, extraordinary expense or material adverse effect on the Partnership, the General Partner, any Issuer or any of their Affiliates or any future investment of the Partnership or the BDC is likely to result without such withdrawal or (D) such withdrawal is necessary for the Partnership to comply with FATCA.

 

  

§ 8.7

 

(b) A Limited Partner shall have the power to request that the General Partner require it to completely or partially withdraw from the Partnership (and the General Partner shall have the power to require such withdrawal) if (i) by reason of a change in any law, regulation, rule or governmental order to which such Limited Partner is subject occurring after its admission to the Partnership, a violation of any such law, regulation, rule or governmental order is likely to result without such withdrawal, (ii) such Limited Partner’s continued participation in the Partnership would be likely to result in a violation of an established policy to which such Limited Partner is subject and which was adopted by such Limited Partner to comply with applicable law, provided that such established policy (A) was provided to, and agreed to in writing for this purpose by, the General Partner prior to the closing of such Limited Partner’s investment in the Partnership and (B) continues in effect as of the date such withdrawal is sought, provided, further, that it is understood to the extent any such accepted policy requires withdrawal (in addition to not making Capital Contributions and/or other payments required to be made hereunder), the General Partner may implement any such action as if there was a violation under and pursuant to this Section 8.7(b)(ii) and the General Partner may enter into agreements with particular Limited Partners implementing the terms thereof with respect to such policy or (iii) in the case of a Limited Partner that is a Public Pension Fund (A) there has been a finding by any court or governmental body of competent jurisdiction in a final judgment or an admission by Carlyle in a settlement of any lawsuit (provided, for the avoidance of doubt, that the settlement of a lawsuit shall not in and of itself be deemed an admission) that Carlyle has materially violated the Public Pension Fund Reform Code of Conduct adopted by it on May 14, 2009, as such Code may be amended, modified or supplemented from time to time (the “Public Pension Fund Reform Code of Conduct”), with respect to such Public Pension Fund and (B) such material violation has not been cured (to the extent curable) within 60 calendar days after such finding or admission. Any Limited Partner withdrawing pursuant to this Section 8.7(b) shall remain liable to the Partnership to the extent of any breach of a representation, warranty or covenant made by such Limited Partner to the Partnership.

 

(c) A Limited Partner seeking to withdraw pursuant to Section 8.7(b) shall supply such opinions of counsel and other information as the General Partner may reasonably request to verify such Limited Partner’s right to withdraw pursuant thereto.

 

(d) To the extent practicable, a Limited Partner seeking to withdraw pursuant to Section 8.7(b) shall cooperate with the General Partner in seeking to arrange a Transfer of such Limited Partner’s Interest in lieu of such Limited Partner’s withdrawal.

 

(e) Each Limited Partner shall be required to use its commercially reasonable efforts to notify the General Partner as soon as reasonably practicable after it comes to such Limited Partner’s attention that, by reason of a change in any law, regulation, rule or governmental order to which such Limited Partner is subject occurring after its admission to the Partnership, a violation of any such law, regulation, rule or governmental order is likely to result without such Limited Partner’s withdrawal from the Partnership.

 

(f) [Intentionally Omitted].

 

  

§ 8.8

 

8.8.          [Intentionally Omitted].

 

Article IX

 

Term, Winding Up and Dissolution of the Partnership

 

9.1.          Term. The existence of the Partnership commenced on the date of filing for record of the Certificate of Limited Partnership in the office of the Secretary of State of the State of Delaware pursuant to the Act and shall continue until the Partnership is dissolved and subsequently terminated, which dissolution shall occur upon the first of any of the following events (each, an “Event of Dissolution”):

 

(i)          the winding-up and subsequent dissolution of the BDC;

 

(ii)         such date that the General Partner, upon not less than 30 calendar days prior written notice to the Limited Partners, distributes all of the BDC Shares on a pro rata basis in kind to the Limited Partners, provided that such a distribution would not cause a violation of any applicable law on the part of the Partnership or any Limited Partner, including under the Investment Company Act;

 

(iii)        in the event that neither Carlyle nor any affiliate thereof is presently serving as investment adviser to the BDC, such date that a Majority in Interest of the Limited Partners vote to (a) remove the General Partner and/or the Investment Adviser, or (b) require the Partnership to make a pro rata distribution in kind of all of the BDC Shares on the terms and subject to the conditions described above in clause (ii), including that such distribution would not cause a violation of applicable law on the part of the Partnership or any Limited Partner;

 

(iv)        the occurrence of a Disabling Event with respect to the General Partner or any other event (except as permitted by Section 8.1(a)) that causes the General Partner to cease to be general partner of the Partnership under the Act, provided that the Partnership shall not be dissolved if (x) 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 (y) within 90 calendar days after the Disabling Event, a Majority in Interest of the Limited Partners agrees in writing to continue the business of the Partnership and to the appointment, effective as of the date of the Disabling Event, of one or more successor general partners, which replacement shall be effected in accordance with the procedures set forth in Section 8.1(c) and is hereby authorized to, and shall, continue the business of the Partnership;

 

  

§ 9.2

 

(v)         the determination by the General Partner in good faith based on written advice of counsel to the Partnership that such earlier dissolution is necessary or advisable because there has been a materially adverse change in any applicable law or regulation or to avoid any violation of, or registration under, the Investment Company Act, ERISA, Section 4975 of the Code or the applicable provisions of any Similar Law;

 

(vi)        the determination by the General Partner at any time that such earlier winding up and dissolution would be desirable or appropriate;

 

(vii)       at any time that there are no limited partners of the Partnership; and

 

(viii)      the judicial dissolution of the Partnership pursuant to Section 17-802 of the Act.

 

9.2.          Winding-up. Upon the occurrence of an Event of Dissolution, the business and affairs of the Partnership shall be wound up. Subject to the foregoing, the General Partner or, if there is no general partner or the dissolution results from the occurrence of a Disabling Event pursuant to Section 8.1(c), a liquidating trustee appointed by a Majority in Interest of the Limited Partners, shall proceed with the winding up of the Partnership and the Final Distribution. In the winding up of the Partnership, the General Partner or such liquidating trustee shall use commercially reasonable efforts to reduce to cash and cash equivalent items such assets of the Partnership as the General Partner or such liquidating trustee shall deem it advisable to sell, subject to obtaining fair value for such assets and any tax, legal, contractual, market or other considerations, over such time as is reasonably necessary to settle gradually and close the Partnership’s business under the circumstances then applicable to the Partnership. In addition, either the General Partner or other liquidating trustee may effect the winding up and liquidation of the cash and then-remaining assets of the Partnership by organizing a liquidating trust, the trustee, administrator or other Person (which need not be an Affiliate of the General Partner) of which shall be authorized to complete the liquidation of the trust consistent with the terms of this Agreement.

 

9.3.          Final Distribution. Following the dissolution of the Partnership, the assets of the Partnership shall be applied in one or more installments in the following order of priority:

 

(a)          First, such proceeds shall be used to satisfy all creditors of the Partnership (including the payment of expenses of the winding-up and dissolution of the Partnership), including Partners that are creditors of the Partnership, to the extent otherwise permitted by law, either by the payment thereof or the making of reasonable provision therefor (including the establishment of reserves, in amounts established by the General Partner or such liquidating trustee); and

 

  

§ 10.1

 

(b) Second, the remaining proceeds, if any, plus any remaining assets of the Partnership shall be applied and distributed to the Partners in accordance with the positive balances of the Partners’ Capital Accounts, as determined after taking into account all adjustments to Capital Accounts for the Partnership taxable year during which the liquidation occurs, by the end of such taxable year or, if later, within 90 calendar days after the date of such liquidation, provided that liquidating distributions shall be made in the same manner and amounts as distributions under Section 3.4 and Article VIII if such distributions would result in the Partners receiving a different amount than would have been received pursuant to a liquidating distribution based on Capital Account balances. For purposes of the application of this Section 9.3 and determining Capital Accounts on liquidation, all unrealized gains, losses and accrued income and deductions of the Partnership shall be treated as realized and recognized immediately before the date of distribution.

 

Article X

 

Capital Accounts and Allocations of Profits and Losses

 

10.1.        Capital Accounts.

 

(a) A separate capital account (the “Capital Account”) shall be established and maintained for each Partner. The Capital Account of each Partner shall be credited with such Partner’s Capital Contributions to the Partnership and all Profits allocated to such Partner pursuant to Section 10.2 and any items of income or gain which are specially allocated pursuant to Section 10.3 or otherwise pursuant to this Agreement; and shall be debited with all Losses allocated to such Partner pursuant to Section 10.2, any items of loss or deduction of the Partnership specially allocated to such Partner pursuant to Section 10.3 or otherwise pursuant to this Agreement, 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. To the extent not provided for in the preceding sentence, the Capital Accounts of the Partners shall be adjusted and maintained in accordance with the rules of Treasury Regulations Section 1.704-1(b)(2)(iv), as the same may be amended or revised, provided that such adjustment and maintenance does not have a material adverse effect on the economic interests of the Partners. 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.

 

  

§ 10.2

 

(b) No Partner shall be required to pay to the Partnership or to any other Person the amount of any negative balance that may exist from time to time in such Partner’s Capital Account, including at the time of the dissolution of the Partnership.

 

10.2.        Allocations of Profits and Losses. Except as otherwise provided in this Agreement, Profits, Losses and, to the extent necessary, individual items of income, gain, loss or deduction of the Partnership shall be allocated among the Capital Accounts of the Partners in a manner that as closely as possible gives economic effect to the provisions of Articles III and IX and the other relevant provisions of this Agreement.

 

10.3.        Special Allocation Provisions. Notwithstanding any other provision in this Article X:

 

(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 10.3(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. In the event that any Partner unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership income and gain shall be specially allocated to such Limited Partner in an amount and manner sufficient to eliminate the deficit balance in such Limited Partner’s Capital Account created by such adjustments, allocations or distributions as promptly as possible.

 

(c) Gross Income Allocation. In the event that any Limited Partner has a deficit Capital Account at the end of any Fiscal Year that 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 Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Limited 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 10.3(c) shall be made only if and to the extent that a Limited Partner would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Article X have been tentatively made as if Section 10.3(b) and this Section 10.3(c) were not in this Agreement.

 

 

§ 10.4

  

(d) General Partner Expenses. To the extent, if any, that General Partner Expenses and any items of loss, expense or deduction resulting therefrom are deemed to constitute items of Partnership loss or deduction rather than items of loss or deduction of the General Partner, such General Partner Expenses and other items of loss, expense or deduction shall be allocated 100% to the General Partner.

 

(e) Payee Allocation. In the event that any payment to any Person that is treated by the Partnership as the payment of an expense is recharacterized by a taxing authority as a Partnership distribution to the payee as a partner, such payee shall be specially allocated an amount of Partnership gross income and gain as quickly as possible equal to the amount of the distribution.

 

(f) Nonrecourse Deductions. Nonrecourse Deductions shall be allocated to the Partners in accordance with their respective Capital Contributions (or if there have been no Capital Contributions, in accordance with Capital Commitments).

 

(g) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any taxable period shall be allocated to the Partner that 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).

 

(h) Special Allocation. Any special allocation of income or gain pursuant to Section 10.3(b) or 10.3(c) hereof shall be taken into account in computing subsequent allocations pursuant to Section 10.2 and this Section 10.3(h), 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 Section 10.3(b) or 10.3(c) had not occurred.

 

10.4.        Tax Allocations. For income tax purposes only, 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 Partnership asset the Carrying Value of which differs from its adjusted tax basis for U.S. federal income tax purposes, income, gain, loss and deduction with respect to such asset shall be allocated solely for income tax purposes in accordance with the principles of Sections 704(b) and (c) of the Code (in any manner determined by the General Partner) so as to take account of the difference between Carrying Value and adjusted basis of such asset. Notwithstanding the foregoing, the General Partner may make such allocations as it deems reasonably necessary to give economic effect to the provisions of this Agreement, taking into account such facts and circumstances as it deems reasonably necessary for this purpose. All matters concerning allocations for U.S. federal, state and local and non-U.S. income tax purposes, including accounting procedures, not expressly provided for by the terms of this Agreement shall be determined by the General Partner. To the extent there is an adjustment by a taxing authority to any item of income, gain, loss, deduction or credit of the Partnership (or an adjustment to any Partner’s distributive share thereof), the General Partner may reallocate the adjusted items among each Partner or former Partner (as determined by the General Partner) in accordance with the final resolution of such audit adjustment. To the extent there is an adjustment by a taxing authority to any item of income, gain, loss, deduction or credit of the Partnership (or an adjustment to any Partner’s distributive share thereof), the General Partner may reallocate the adjusted items among each Partner or former Partner (as determined by the General Partner) in accordance with the final resolution of such audit adjustment.

 

  

§ 10.5

 

10.5.       Other Allocation Provisions. 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. Sections 10.2 to 10.5 may be amended at any time by the General Partner if necessary to comply with such regulations or to ensure that allocations hereunder give economic effect to provisions of this Agreement, provided that any such amendment shall not materially alter the pre-tax economic provisions of this Agreement.

 

10.6.        Tax Advances. Notwithstanding any other provision of this Agreement, each Partner hereby authorizes the Partnership and the General Partner to withhold and pay over, or otherwise pay, any withholding or other taxes payable or required to be deducted by the Partnership or any of its Affiliates pursuant to the Code or any provision of U.S. federal, state, local or non-U.S. tax law with respect to such Partner or as a result of such Partner’s participation in the Partnership or a Transfer to such Partner. Any withholding referred to in this Section 10.6 may be made at the maximum applicable statutory rate under applicable law unless the General Partner has received evidence satisfactory to the General Partner to the effect that a lower rate is applicable or that no withholding is applicable. Each Partner hereby agrees that neither the Partnership nor any Partner will be liable to any other Partner for any excess taxes withheld in respect of a Partner’s Interest, and that a Partner’s recourse will, to the fullest extent permitted by law, be limited to a refund claim or other claim or action against the applicable taxing authority. To the extent the General Partner reasonably determines that the Partnership (or any entity in which the Partnership holds an interest) is required by law to withhold or to make tax payments, including any interest, additions to tax or penalties with respect thereto, on behalf of or with respect to any Partner or with respect to items allocable to any Partner, including backup withholding taxes or an amount due under the Partnership Audit Rules or under Section 1446(f) of the Code that, in the General Partner’s reasonable discretion, is attributable to such Partner or such Partner’s predecessor ( “Tax Advances”), the General Partner may withhold or escrow such amounts and make such payments as so required. All Tax Advances in relation to a Partner shall, at the option of the General Partner, (i) be promptly paid to the Partnership by such Partner (which payment will not constitute a Capital Contribution or reduce the Unpaid Capital Commitment of such Partner) or (ii) 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 the winding up of the Partnership’s assets otherwise payable to such Partner. Whenever the General Partner selects option (ii) pursuant to the preceding sentence for repayment of a Tax Advance by a Partner, for all other purposes of this Agreement such Partner shall be treated as having received all distributions (whether before or upon liquidation of the Partnership) unreduced by the amount of such Tax Advance. To the fullest extent permitted by law, 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) with respect to items allocable to or distributions or other payments to such Partner. In the event the Partnership is being wound up and a liability is asserted by a governmental authority against the General Partner or any member or officer of the General Partner for any Tax Advances made or required to be made, the General Partner shall have the right to be reimbursed from the Limited Partner on whose behalf such Tax Advance was made or required to be made. In the event the Partnership is being wound up and a liability is asserted by a governmental authority against the General Partner or any member or officer of the General Partner for any Tax Advances made or required to be made, the General Partner shall have the right to be reimbursed from the Limited Partner on whose behalf such Tax Advance was made or required to be made. For the avoidance of doubt, all references in this Section 10.6 to a Partner shall include any predecessor in interest to such Partner and any former Partner. The obligations of a Partner set forth in this Section 10.6 shall survive the withdrawal of any Partner from the Partnership, any Transfer of a Partner’s Interest and any other event that causes a Partner to cease to be a limited partner of the Partnership.

 

  

§ 11.1

 

Article XI

 

Miscellaneous

 

11.1.        Waiver of Accounting and Partition. Except as may be otherwise required by law, each Partner hereby irrevocably waives any and all rights that it may have to maintain an action for an accounting or for partition or similar action of any of the Partnership’s property.

 

11.2.        Power of Attorney. Each Limited Partner hereby irrevocably constitutes and appoints the General Partner and each of the General Partner’s duly appointed attorneys, with full power of substitution, the true and lawful attorney-in-fact and agent of such Limited Partner, to execute, acknowledge, verify, swear to, deliver, record and file, in its or its Transferee’s name, place and stead, all in accordance with the terms of this Agreement, all instruments, documents and certificates that may from time to time be required by the laws of the United States of America, the State of Delaware, any other jurisdiction in which the Partnership conducts or plans to conduct its affairs, or any political subdivision or agency thereof to effectuate, implement and continue the valid existence and affairs of the Partnership, including, without limitation, the power and authority to verify, execute, swear to, acknowledge, deliver, record and file:

 

(a) all certificates and other instruments, including any amendments to this Agreement or to the Certificate of Limited Partnership, which the General Partner deems appropriate to form, qualify or continue the Partnership as a limited partnership (or a partnership in which the limited partners have limited liability) in the State of Delaware and all other jurisdictions in which the Partnership conducts or plans to conduct its affairs,

 

(b) any amendments to this Agreement or any other agreement or instrument that the General Partner deems appropriate to (i) effect the addition, substitution or removal of any Limited Partner or General Partner pursuant to this Agreement or (ii) effect any other amendment or modification to this Agreement, but only if such amendment or modification is duly adopted in accordance with the terms hereof,

 

(c) all conveyances and other instruments that the General Partner deems appropriate to reflect the dissolution, winding up and termination of the Partnership pursuant to the terms hereof or applicable law, including the writing required by the Act to cancel the Certificate of Limited Partnership,

 

(d) [Intentionally Omitted],

 

(e) all instruments relating to Transfers of Interests of Limited Partners or to the admission of any substitute Limited Partner, including executing Transfer documents on behalf of a Defaulting Limited Partner,

 

(f) certificates of assumed name and such other certificates and instruments as may be necessary under the fictitious or assumed name statutes from time to time in effect in all jurisdictions in which the Partnership conducts or plans to conduct its affairs,

 

  

§ 11.2

 

(g) all agreements and instruments necessary or advisable to consummate or hold the investment in the BDC Shares,

 

(h) [Intentionally Omitted],

 

(i) [Intentionally Omitted],

 

(j) [Intentionally Omitted],

 

(k) all agreements and instruments necessary in connection with any action contemplated pursuant to Section 11.15(b),

 

(l) any election pursuant to Section 954(b)(4) of the Code to exclude income of a “controlled foreign corporation” from classification as “subpart F income” and

 

(m) any other instruments determined by the General Partner to be necessary or appropriate in connection with the proper conduct of the business of the Partnership or the BDC and that do not adversely affect the interests of the Limited Partners.

 

Such attorney-in-fact and agent shall not, however, have the right, power or authority to amend or modify this Agreement when acting in such capacities, except to the extent authorized herein. This power of attorney shall terminate upon the bankruptcy, termination, disability or incompetence of the General Partner or upon the removal of the General Partner of the Partnership. The power of attorney granted herein shall be deemed to be coupled with an interest, shall be irrevocable, shall survive and not be affected by the subsequent dissolution, bankruptcy, insolvency or legal disability of the Limited Partner and shall extend to its successors and assigns; and may be exercisable by such attorney-in-fact as agent for all Limited Partners (or any of them) required to execute any such instrument, with or without listing all of the Limited Partners executing an instrument. No Limited Partner shall revoke such power of attorney. Any Person dealing with the Partnership may conclusively presume and rely upon the fact that any instrument referred to above, executed by such attorney-in-fact and agent, is authorized, regular and binding, without further inquiry. If required, each Limited Partner shall execute and deliver to the General Partner within 10 calendar days after the receipt of a request therefor, such further designations, powers of attorney or other instruments as the General Partner shall reasonably deem necessary for the purposes hereof. The General Partner agrees that it will not exercise the power of attorney granted herein with respect to a Limited Partner if such Limited Partner has reasonably determined and notified the General Partner in writing that such exercise would contravene any U.S. federal, state, local or non-U.S. law to which such Limited Partner is or may become subject.

 

  

§ 11.3

 

11.3.          Amendments.

 

(a) Except as required by law (and except to the extent that this Agreement authorizes the General Partner to amend this Agreement without the consent of any other Partner or as otherwise expressly provided for elsewhere in this Agreement), the terms and provisions of this Agreement may be modified, amended or waived at any time and from time to time with the written consent of the General Partner and a Majority in Interest of the Limited Partners, provided that no such amendment shall:

 

(i)          increase any Limited Partner’s Capital Commitment, reduce its share of the Partnership’s distributions, income and gains, increase its share of the Partnership’s losses or adversely affect the limited liability of such Limited Partner without the written consent of each Limited Partner so affected (for the avoidance of doubt, none of the foregoing shall be deemed to include the admission of a new or substitute Limited Partner in accordance herewith),

 

(ii)         change in a manner adverse to the Limited Partners the percentage of interests of Limited Partners (the “Required Interest”) necessary for any consent required hereunder to the taking of an action in a manner adverse to the Limited Partners unless such amendment is approved by Limited Partners who then hold interests equal to or in excess of the Required Interest for the subject of such proposed amendment,

 

(iii)        make any amendment or supplement to Section 4.8 or any other provision of this Agreement that deals with ERISA in each case in a manner adverse to the ERISA Partners without the consent of a Majority in Interest of the Limited Partners that are ERISA Partners, or

 

(iv)        amend this Section 11.3 in a manner adverse to any Limited Partner without the consent of each such Limited Partner.

 

(b) Notwithstanding the provisions of Section 11.3(a), this Agreement may be amended by the General Partner without the consent of the Limited Partners to:

 

(i)          change the name of the Partnership pursuant to Sections 2.2 and 8.1(j),

 

(ii)         cure any ambiguity or correct or supplement any provision hereof that is incomplete or inconsistent with any other provision hereof or correct any printing, stenographic or clerical error or omission,

 

(iii)        reduce the Capital Commitments on a pro rata basis,

 

(iv)        [Intentionally Omitted],

 

  

§ 11.3

 

(v)         [Intentionally Omitted],

 

(vi)        [Intentionally Omitted],

 

(vii)       make any amendment (A) to satisfy any requirements, conditions, guidelines or opinions contained in any opinion, directive, order, the U.S. Securities and Exchange Commission, the U.S. Internal Revenue Service or any governmental entity or any statute, compliance with which the General Partner deems to be in the best interest of the Partnership so long as the amendment does not materially adversely affect the rights or obligations of the existing Limited Partners taken as a whole, or (B) as may be necessary or advisable to comply with the Investment Company Act or the Advisers Act or any anti-money laundering or anti-terrorist laws, rules, regulations, directives or special measures,

 

(viii)      make any amendment in connection with legal, tax, regulatory or other similar issues affecting one or more of the Partners so long as such amendment under this clause (viii) does not (A) materially and adversely affect the interests of any Limited Partner, as determined by the General Partner in good faith or (B) materially change the amount or timing of distributions otherwise made to any Limited Partner,

 

(ix)         make any amendment, as determined by the General Partner in good faith, which may include reorganizing or reconstituting the Partnership, to address changes in regulatory or tax legislation, and which would not materially add to the obligations (including any tax liabilities) of any Limited Partner or otherwise alter any of the rights (including the amount or timing of distributions to be made to any Limited Partner or any other economic rights) of such Limited Partner without the consent of such Limited Partner, provided, that the costs and expenses incurred in connection with any amendment pursuant to this Section 11.3(b)(ix) that is primarily for the benefit of the General Partner shall be borne by the General Partner,

 

(x)          make any amendment necessary or advisable to conform this Agreement to conform to or operate properly in connection with the terms of the BDC Charter or actions taken in accordance with the Special Tender Offer or otherwise as necessary or advisable to facilitate the purpose of the Partnership to invest in the BDC Shares, and

 

(xi)         provide for changes in the Partnership Audit Rules or FATCA or in order to address any regulations or guidance adopted under Section 1446(f) of the Code (or similar rule under state, local or non-U.S. law).

 

  

§ 11.4

 

Notice of any amendment pursuant to the foregoing clauses (iv) or (v) shall include (1) a prominent statement to the effect that the General Partner intends to amend this Agreement in the manner set forth in the proposed amendment if no objection is received from any Limited Partner (2) the date by which Limited Partners must give notice of any such objection and (3) a method for a Limited Partner to object in writing to the proposed amendment. Each Limited Partner will receive a copy of any amendment passed pursuant to this Section 11.3.

 

(c) The General Partner shall have the right to amend this Agreement without the approval of any other Partner to the extent the General Partner reasonably determines, based upon written advice of tax counsel to the Partnership, that the amendment is necessary to provide assurance that the Partnership will not be treated as a “publicly traded partnership” under Section 7704 of the Code and the regulations promulgated thereunder, provided that (i) such amendment shall not change the relative economic interests of the Partners, reduce any Partner’s share of distributions, or increase any Partner’s Capital Commitment or its liability hereunder and (ii) the General Partner provides a copy of such written advice and amendment to the Limited Partners at least 20 calendar days prior to the effective date of any such amendment and a Majority in Interest of the Limited Partners shall not have made a reasonable objection to such amendment prior to the effective date of such amendment.

 

(d) Notwithstanding anything to the contrary in this Section 11.3, in the event that an amendment to this Agreement would disproportionately have a material adverse effect on one Limited Partner in comparison to another Limited Partner, such amendment may not be approved without the consent of any such disproportionately affected Limited Partner.

 

(e) With respect to any voting rights that the Limited Partners may have, the Limited Partners will vote as a single class.

 

11.4.        Confidentiality.

 

(a) All communications between the General Partner, the Partnership or any of their Affiliates, on the one hand, and any Limited Partner, on the other (including, for the avoidance of any doubt, with respect to co-investment opportunities presented to the Limited Partners), shall be presumed to include confidential, proprietary, trade secret and other sensitive information and, unless otherwise agreed to in writing by the General Partner, each Limited Partner will maintain the confidentiality of information which is non-public information furnished by or on behalf of the General Partner, the Partnership or any of their Affiliates regarding the General Partner the Partnership, the BDC or any of their Affiliates (including information regarding any Person in which the BDC holds, or contemplates acquiring, any Investments) received by such Limited Partner pursuant to this Agreement or otherwise (including in connection with any Partnership or BDC informational meeting or investor conference), except (i) as otherwise required by governmental regulatory agencies (including tax authorities in connection with an audit or other similar examination of such Limited Partner), self-regulating bodies, law, legal process, or litigation in which such Limited Partner is a defendant, plaintiff or other named party (provided that in each case, except with respect to Fund Level Information, such Limited Partner promptly notifies Carlyle in writing of such requirement prior to any such disclosure so that Carlyle, the General Partner, the BDC or the Partnership may seek a protective order or other appropriate remedy), (ii) to directors, officers, sponsors, fiduciaries, agents, employees, beneficiaries, advisors and representatives of such Limited Partner and its Affiliates, who need to know the information and who are informed of the confidential nature of the information and agree to keep it confidential (it being understood that such Limited Partner shall be liable for any breach of this Section 11.4 by any of the Persons set forth in this clause (ii)), (iii) to third-party advisors to such Limited Partner and its Affiliates who need to know the information and who are informed of the confidential nature of the information and directed to keep it confidential (it being understood that such Limited Partner will be liable for any breach of this Section 11.4 by any of the Persons set forth in clauses (ii) and (iii)), (iv) with respect to information which becomes generally available to the public other than as a result of a disclosure by such Limited Partner that is in breach of this Section 11.4 or (v) with respect to information which is independently developed by such Limited Partner without the use of or reference to any confidential information. Without limitation of the foregoing, each Limited Partner acknowledges that the foregoing information and any notices and reports to Limited Partners and information provided in connection with any Partnership meetings may contain material non-public information concerning, among other things, the Partnership and Carlyle and actual or potential Issuers and agrees not to use such information or any other confidential information other than in connection with monitoring its investment in the Partnership and its indirect investment in the BDC and agrees in that regard not to trade in securities on the basis of any such information.

 

  

§ 11.4

 

(b) Notwithstanding the provisions of Section 11.4(a) above, the General Partner agrees that each Limited Partner that (i) itself is an investment partnership, trust or other collective investment vehicle having reporting obligations to its limited partners, beneficiaries or other investors and (ii) has, prior to the closing of its subscription for Interests, notified the General Partner in writing that it is electing the benefits of this Section 11.4(b) may, in order to satisfy such Limited Partner’s reporting obligations, provide on a confidential basis the following information to such Persons regarding the Partnership, the BDC and any Issuers: (A) the cost of the BDC’s investment in an Issuer, (B) a description of the business of the Issuer and information regarding the industry and geographic location of the Issuer, (C) the book value of an Issuer on the last day of the quarter (as reported by the BDC in the BDC’s financial statements), (D) a brief description of the investment strategy of the BDC and (E) Fund Level Information, provided that each limited partner or other investor of such Limited Partner has agreed contractually to maintain the confidentiality of such information set forth in clauses (A) through (C) above on the same basis as provided for in this Agreement. Notwithstanding the foregoing, except as provided in Section 11.4(h), in no event may any such Limited Partner disclose any other confidential information regarding the Partnership, the BDC, the General Partner or any of their Affiliates or any information regarding the BDC’s pending acquisition or pending disposition of an Issuer or proposed Issuer without, to the extent permitted by applicable law, the prior written consent of the General Partner. In connection with any Limited Partner’s disclosure of Fund Level Information concerning the valuation of its Interest or any performance data relating to the Partnership, such Limited Partner shall provide a representation (in the form of a legend if such information is disclosed in writing) to the effect that such data (x) does not necessarily accurately reflect the current or expected future performance of the Partnership or the fair value of its Interest, (y) should not be used to compare returns among multiple private equity funds and (z) has not been calculated, reviewed, verified or in any way sanctioned or approved by the General Partner or any of its Affiliates.

 

  

§ 11.4

 

(c) In the event that (i) the General Partner determines in good faith that a Limited Partner has violated or is reasonably likely to violate the provisions of this Section 11.4 or (ii) in the case of a Limited Partner that is directly or indirectly (A) subject to the U.S. Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), any state public records access law, any state or other jurisdiction’s laws similar in intent or effect to FOIA, or any other similar statutory or regulatory requirement (any such law or statutory or regulatory requirement, a “Disclosure Law”), (B) subject, by regulation, contract or otherwise, to disclose information concerning the Partnership or the BDC to a trading exchange or other market where interests in such Person are sold or traded, whether foreign or domestic, or (C) an agent, nominee, fiduciary, custodian or trustee for any Person described in the preceding clause (A) or (B) where information concerning the Partnership or the BDC provided or to be disclosed to such agent, nominee, fiduciary, custodian or trustee by the Partnership or the General Partner is provided or could at any time become available to such Person described in the preceding clause (A) or (B), the General Partner determines in good faith that there is a reasonable likelihood that a request will be made to such Limited Partner for disclosure pursuant to a Disclosure Law or contractual requirement that would result in the disclosure by such Limited Partner of confidential information regarding the Partnership, BDC and Issuers other than Fund Level Information, the General Partner may (I) provide to such Limited Partner access to such information only on the BDC’s or the Partnership’s website in password protected, non-downloadable, non-printable format, and (II) require such Limited Partner to return any copies of information provided to it by the General Partner, the BDC or the Partnership.

 

(d) To the extent that any Disclosure Law would potentially cause a Limited Partner or any of its Affiliates to disclose information relating to the Partnership, the BDC, their Affiliates and/or any Issuer, such Limited Partner hereby agrees that, in addition to compliance with the notice requirements set forth in Section 11.4(a) above, such Limited Partner (i) shall take commercially reasonable steps to oppose and prevent the requested disclosure unless (A) such Limited Partner is advised by counsel (which in the case of a Limited Partner that is an institutional investor may be staff counsel regularly employed by such institutional investor) that there exists no reasonable basis on which to oppose such disclosure under applicable statutory or regulatory requirement, (B) the General Partner does not object in writing to such disclosure within 10 calendar days (or such lesser time period as stipulated by the applicable law) of such notice or (C) such disclosure is limited solely to Fund Level Information and as such does not include (1) any information relating to individual Issuers, (2) copies of this Agreement and related documents or (3) any other information not referred to in this Section 11.4(d), and (ii) acknowledges and agrees that notwithstanding any other provision of this Agreement, except as may be necessary for a Limited Partner to disclose in accordance with Section 11.4(h) below, the General Partner may, in order to prevent any such potential disclosure that the General Partner determines in good faith is likely to occur, withhold all or any part of the information otherwise to be provided to such Limited Partner other than Fund Level Information and Schedule K-1s or the equivalent thereof, provided that the General Partner shall not withhold any such information if a Limited Partner confirms in writing to the General Partner that compliance with the procedures provided for in Section 11.4(c) above is legally sufficient to prevent such potential disclosure.

 

  

§ 11.4

 

(e) In order to preserve the confidentiality of certain information disseminated by the General Partner, the BDC or the Partnership under this Agreement that a Limited Partner is entitled to receive pursuant to the provisions of this Agreement, including, but not limited to, quarterly, annual and other reports and information provided at the Partnership’s or the BDC’s informational meetings, the General Partner may (i) provide to such Limited Partner access to such information only on the Partnership’s website in password protected, non-downloadable, non-printable format, and (ii) require such Limited Partner to return any copies of information provided to it by the General Partner, the BDC or the Partnership.

 

(f) Notwithstanding any other provision of this Agreement, except as may be necessary for a Limited Partner to disclose in accordance with Section 11.4(h) below, to the fullest extent permitted by law, the General Partner shall have the right to keep confidential from any Limited Partner (i) any books and records of the Partnership that are requested by such Limited Partner that are not necessary and essential to a proper purpose reasonably related to such Limited Partner’s Interest, and (ii) for such period of time as the General Partner determines is reasonable (A) any information that the General Partner reasonably believes to be proprietary and (B) any other information (I) the disclosure of which the General Partner believes is not in the best interest of the Partnership, the BDC or any of their investments, (II) that the Partnership, the General Partner or any of their Affiliates, or the officers, employees or directors of any of the foregoing, is required by law or by agreement with a third Person (including another Limited Partner) to keep confidential, (III) regarding an Issuer where the General Partner determines that a conflict of interest between such Limited Partner and such Issuer exists or (IV) if the General Partner determines in its discretion that the provision of such information could raise questions or concerns from, or make an investment or transaction subject to review by, a U.S. or other national security or investment clearance regulator, in each case other than Fund Level Information and Schedule K-1s or the equivalent thereof for such Limited Partner.

 

  

§ 11.5

 

(g) A Limited Partner may, by giving written notice to the General Partner, elect not to receive copies of any document, report or other information that such Limited Partner would otherwise be entitled to receive pursuant to this Agreement and is not required by applicable law to be delivered. The General Partner agrees that it shall make any such documents available to such Limited Partner at the General Partner’s offices (or, at the request of such Limited Partner, the offices of Partnership Counsel).

 

(h) [Intentionally Omitted].

 

(i) For the avoidance of doubt, the General Partner may disclose any information concerning the Partnership, the BDC or the Limited Partners necessary to comply with applicable laws and regulations, including any anti-money laundering or anti-terrorist laws or regulations, and each Limited Partner shall provide the General Partner, promptly upon request, all information that the General Partner reasonably deems necessary to comply with such laws and regulations.

 

(j) Any obligation of a Limited Partner pursuant to this Section 11.4 may be waived by the General Partner.

 

11.5.        Entire Agreement. This Agreement and the other agreements referred to herein (including any Subscription Agreement or Side Letter) constitute the entire agreement among the Partners and between the Partners and the Initial Limited Partner with respect to the subject matter hereof and supersede any prior agreement or understanding among or between them with respect to such subject matter. The representations and warranties of the Limited Partners in, and the other provisions of, the Subscription Agreements shall survive the execution and delivery of this Agreement. Notwithstanding any provision in this Agreement (including Section 11.3) or any Subscription Agreement, the parties hereto acknowledge that the Partnership or General Partner, on its own behalf or on behalf of the Partnership, without any further act, approval or vote of any Partner or other Person, may enter into side letters, agreements or other writings (“Side Letters”) with one or more Limited Partners that have the effect of establishing rights under, or altering or supplementing, the terms of, this Agreement and of any Subscription Agreement, provided that only those documents explicitly stating that they constitute a Side Letter for purposes of this Section 11.5 with respect to a Limited Partner shall comprise part of the entire agreement among the General Partner, the Partnership and such Limited Partner for purposes hereof. For the avoidance of doubt, any side letters, agreements or other writings entered into with a Limited Partner altering or supplementing the terms of the Limited Partner’s investment in the BDC other than through the Partnership shall not constitute a “Side Letter” for purposes of this Agreement. The General Partner shall not be, to the fullest extent permitted by applicable law, under obligation to give the Limited Partners notice of any Side Letters entered into, however, subject to confidentiality obligations, the Partnership will, upon request, make available copies of all Side Letters or a compendium containing the provisions of any such Side Letters after the Initial Investment Date, which copies or compendium may be redacted of any identifying information. The parties hereto agree that any rights established, or any terms of this Agreement and of any Subscription Agreement altered or supplemented, in a Side Letter or other agreement with a Limited Partner shall govern solely with respect to such Limited Partner (but not any of such Limited Partner’s Transferees unless so specified in such Side Letter or otherwise agreed to by the General Partner), notwithstanding any other provision of this Agreement or any of the Subscription Agreements or Subsequent Subscription Agreements, and, for the avoidance of doubt, matters arising under any Side Letter are considered matters contemplated by this Agreement and the provisions of Section 4.3 shall apply equally to any Side Letter, provided that unless otherwise agreed in writing by the General Partner, any such rights shall cease to apply with respect to any Limited Partner that becomes a Defaulting Limited Partner. To the fullest extent permitted by applicable law, the Partnership, the General Partner and their respective Affiliates will be required to observe the regulations, internal rules or policies of any Limited Partner that is a Public Pension Fund to the extent (and only to the extent) that such regulation, internal rule or policy was provided, or a certification was made in respect thereof, by such Limited Partner and agreed to in writing for this purpose by, the General Partner prior to the closing of such Limited Partner’s investment in the Partnership. Notwithstanding anything to the contrary in this Agreement, no Limited Partner’s subscription and investment in the Partnership shall be on less favorable terms relating to economics or information or reporting rights (such terms, the “Applicable Terms”) than those of any other Limited Partner. To the extent the Partnership or General Partner shall subsequently agree to any Applicable Terms with respect to a Limited Partner’s subscription and investment in the Partnership that are more favorable than those afforded to any other Limited Partner, including pursuant to any Side Letter or similar agreement regarding the Partnership, all Limited Partners shall be entitled to the benefit of such more favorable Applicable Terms with respect to the Partnership. Notwithstanding the foregoing, (a) the forgoing protection shall apply only to each Limited Partner's subscription and investment into the Partnership and shall not extend or apply to terms of any investment by any Limited Partner into any Affiliate of the BDC or the Partnership, including any other Carlyle Investment Fund, (b) the forgoing protection shall not apply to any transfer rights granted to a particular Limited Partner with respect to its indirect investment in the BDC Shares to the extent such transfer rights relate to transfers that may be required by law, rule or regulation applicable to a particular Limited Partner, and (c) the forgoing protection shall not apply with respect to Applicable Terms provided to a Limited Partner who is an Affiliate of Carlyle.

 

  

§ 11.6

 

11.6.        Further Actions. Each Limited Partner shall execute and deliver such other certificates, agreements and documents, and take such other actions, as may reasonably be requested by the General Partner in connection with the formation of the Partnership and the achievement of its purposes or to give effect to the provisions of this Agreement, in each case as are not inconsistent with the terms and provisions of this Agreement, including all such agreements, certificates, tax statements and other documents as may be required to be filed by or on behalf of the Partnership.

 

11.7.        Severability. Each provision of this Agreement shall be considered severable and if for any reason any provision which is not essential to the effectuation of the basic purposes of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable and contrary to the Act or existing or future applicable law, such invalidity shall not impair the operation of or affect those provisions of this Agreement which are valid. In that case, this Agreement shall be construed so as to limit any term or provision so as to make it enforceable or valid within the requirements of any applicable law, and in the event that such term or provision cannot be so limited, this Agreement shall be construed to omit such invalid or unenforceable provisions.

 

11.8.        Notices; Consents.

 

(a)          All notices, reports, requests, demands and other communications hereunder shall be in writing and shall be delivered (a) to the General Partner or a Limited Partner in person, by registered mail, recorded delivery or private courier, (b) to a Limited Partner by fax or (c) to the Limited Partner by e-mail and/or via the Partnership’s password-protected investor reporting website, unless the Limited Partner has requested otherwise in writing to the General Partner. All notices to a Limited Partner shall be delivered to such Limited Partner at such Limited Partner’s last known address, fax number or e-mail address as set forth in the records of the Partnership, or via the Partnership’s intranet website, as the case may be. All notices to the General Partner shall be delivered to [email protected] or c/o The Carlyle Group Inc., 1001 Pennsylvania Avenue, Suite 220 South, Washington, D.C. 20004, Attention: Fund Manager, CDL Tender Fund 2022-1, L.P, with a copy to Dechert LLP, Three Bryant Park, 1095 Avenue of the Americas, New York, NY 10036, Attention: Richard Horowitz. The General Partner may designate a new address for notices by giving written notice to that effect to each of the Limited Partners. A notice given in accordance with the foregoing clause (a) shall be deemed to have been effectively given seven calendar days after such notice is mailed by registered mail or recorded delivery, return receipt requested, or one calendar day after such notice is sent by private courier, in each case to the proper address, or at the time delivered when delivered in person or by private courier. A notice given by fax in accordance with the foregoing clause (b) shall be deemed to have been effectively given when sent and confirmed by telephone by the sender. A notice given by e-mail in accordance with the foregoing clause (c) shall be deemed to have been effectively given when sent to the Limited Partner’s e-mail address or when an e-mail is sent to the Limited Partner notifying it that such notice has been posted on the Partnership’s intranet website, as applicable, with the sender having received no e-mail notifying a delivery failure in relation to the e-mail giving such notice.

 

  

§ 11.9

 

(b)          For all purposes of this Agreement, a written vote, approval or consent of any Limited Partner shall, to the fullest extent permitted by applicable law, be deemed to include any vote, approval or consent given by electronic medium (whether through e-mail, via elections or other communications transmitted through a secure website maintained by the Partnership or its Affiliates, or otherwise).

 

11.9.        Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. In particular, the Partnership is formed pursuant to the Act, and the rights and liabilities of the Partners shall be as provided therein, except as herein otherwise expressly provided. Any claims, suits, actions or proceedings arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce (a) the provisions of this Agreement, (b) the duties, obligations or liabilities of the Partnership to the Limited Partners or the General Partner, or of Limited Partners or the General Partner to the Partnership, or among Partners, (c) the rights or powers of, or restrictions on, the Partnership, the Limited Partners or the General Partner, (d) any provision of the Act, or (e) any other instrument, document, agreement or certificate contemplated by any provision of the Act relating to the Partnership (regardless of whether such claims, suits, actions or proceedings (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)), may be brought only in (i) the courts of the State of Delaware in the United States and (ii) the courts of the State of New York in the United States located in New York County or the United States District Court for the Southern District of New York, to the extent subject matter jurisdiction exists therefor, and the parties irrevocably submit to the exclusive jurisdiction of those courts in respect of any such action, suit or proceeding. To the fullest extent permitted by law, the Limited Partners hereby waive as a defense that any such action, suit or proceeding brought in such courts has been brought in an inconvenient forum or that the venue thereof may not be appropriate and, furthermore, agree that venue in the State of Delaware for any such action, suit or proceeding is appropriate. Notwithstanding the foregoing, (a) a Limited Partner which is a Governmental Plan and which has provided a written representation to the General Partner prior to the date of its admission as a Limited Partner, that such an irrevocable submission to jurisdiction or waiver, as the case may be, would constitute a violation of applicable law or regulation shall not be deemed to have made such an irrevocable submission or waiver, as the case may be and (b) a Limited Partner which is, or is investing on behalf of, an instrumentality of any governmental entity may, upon admission to the Partnership, agree in writing with the General Partner that such Limited Partner shall not be deemed to have made such an irrevocable submission or waiver, as the case may be. UNLESS THE GENERAL PARTNER OTHERWISE AGREES IN WRITING, EACH PARTNER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT.

 

  

§ 11.10

 

11.10.      Arbitration. The General Partner may cause the Partnership to agree to arbitration with respect to any dispute arising between a Limited Partner on the one hand and the General Partner, the Partnership and/or their respective Affiliates on the other hand where the Limited Partner or its Affiliates has so agreed.

 

11.11.      Successors and Assigns.

 

(a) Except with respect to the rights of Indemnified Parties hereunder, none of the provisions of this Agreement shall be for the benefit of or enforceable by the creditors of the Partnership or other third parties (except as provided in Section 4.2(c)) and this Agreement shall be binding upon and inure to the benefit of the Partners, the Initial Limited Partner and their legal representatives, heirs, successors and permitted assigns.

 

(b) Any Indemnified Party not being a party to this Agreement and any intended third party beneficiaries pursuant to the provisions of Sections 4.2(c) may enforce any rights granted to it pursuant to this Agreement in its own right as if it were a party to this Agreement.

 

(c) Notwithstanding any term of this Agreement (other than Section 8.1(i), the consent of or notice to any person who is not a party to this Agreement shall not be required for any termination, rescission or agreement to any variation, waiver, assignment, novation, release or settlement under this Agreement at any time.

 

11.12.      Counterparts. This Agreement may be executed in one or more counterparts, all of which shall constitute one and the same instrument. For the avoidance of doubt, a Person’s execution and delivery of this Agreement by electronic signature and electronic transmission, including via Docusign or other similar method (the “Electronic Signature”), shall constitute the execution and delivery of a counterpart of this Agreement by or on behalf of such Person and shall bind such Person.

 

  

§ 11.13

 

11.13.      Determinations of the Partners. To the fullest extent permitted by law and not withstanding any other provision of this Agreement or in any other agreement contemplated herein or applicable provisions of law or equity or otherwise, whenever in this Agreement a Person is permitted or required to make a decision (a) in its “sole discretion,” “sole and absolute discretion” or “discretion,” such Person shall be entitled to consider any interests and factors as it desires, including placing its own interests ahead of the interests of any other Person and shall, to the fullest extent permitted by law, have no duty or obligation to give any consideration to any interest of or factor affecting the Partnership or any other Person, or (b) in its “good faith” or under another express standard, such Person shall act under such express standard and shall not be subject to any other or different standards. If any questions should arise with respect to the operation of the Partnership that are not specifically provided for in this Agreement or the Act, or with respect to the interpretation of this Agreement, the General Partner is hereby authorized to make a determination with respect to any such question and to interpret this Agreement in good faith.

 

11.14.      Headings. The Section headings in this Agreement are for convenience of reference only, and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.

 

11.15.      Partnership Tax Treatment and Other Tax Matters.

 

(a) The Partners intend for the Partnership to be treated as a partnership for U.S. federal income tax purposes and no election to the contrary shall be made.

 

 

§ 11.15

 

(b) Each Partner shall provide the General Partner and the Partnership with any information, representations, certificates, forms or other documentation relating to such Partner (and its direct or indirect owners or account holders) that are requested from time to time by the General Partner and that the General Partner determines are necessary or appropriate in order for any Partnership Entity to (i) avoid any withholding or penalties required under DAC 6 or FATCA (including, without limitation, any withholding upon any payments to any Partnership Entity or any of its Affiliates or to any Partner under this Agreement), (ii) comply with any reporting, withholding or other requirements under DAC 6 or FATCA, (iii) enter into, maintain or comply with an “FFI Agreement,” as defined in the Code or the Treasury Regulations thereunder (or any other agreement entered into in connection with FATCA), (iv) otherwise comply with DAC 6 or FATCA or (v) determine the Partner’s position under the Anti-Hybrid Rules. In addition, each Partner shall take such actions as the General Partner may reasonably request in connection with the foregoing. In the event that any Partner fails to provide any of the information, representations, certificates, forms or documentation (or undertake any of the actions) required under this Section 11.15(b), the General Partner shall have full authority to (A) form an entity organized in the United States or any state thereof, transfer such Partner’s interest in the Partnership to such entity, admit such Partner as an owner of such entity and cause such Partner to cease to be a Partner of the Partnership, (B) close such Limited Partner’s “account” with the Partnership by causing a transfer of such Partner’s interest in the Partnership to a Person selected by the General Partner in a transaction that complies with Section 8.2 in exchange for any consideration that can be obtained for such interest or (C) take any other steps as the General Partner determines are necessary or appropriate to mitigate the consequences of such Partner’s failure to comply with this Section 11.15(b)on any Partnership Entity and the other Partners. If requested by the General Partner, such Partner shall execute any and all documents, opinions, instruments and certificates as the General Partner shall have reasonably requested or that are otherwise required to effectuate the foregoing. Any Partner that fails to comply with this Section 11.15(b)shall, together with all other Partners that fail to comply with this Section 11.15(b), unless otherwise agreed by the General Partner in writing, to the fullest extent permitted by law, indemnify and hold harmless Carlyle, the General Partner, the Partnership, each other Partner and each other Partnership Entity for any costs or expenses arising out of such failure or failures, including any withholding tax or penalties imposed under DAC 6 or FATCA on any of the Partnership Entities and any withholding or other taxes imposed as a result of a transfer effected pursuant to this Section 11.15(b) (including pursuant to the Partnership Audit Rules, Section 1446(f) of the Code or FATCA). The General Partner may cause the Partnership to indemnify and hold harmless the General Partner to give effect to the indemnification provisions of this Section 11.15(b), including by entering into any deed poll in favor of, or agreement with, the General Partner. If, pursuant to a separate indemnification agreement or otherwise, the Partnership indemnifies or is required to indemnify the General Partner against any costs or expenses as a result of any Partner’s failure to comply with this Section 11.15(b)and any transaction entered into by the Partnership, such Partner shall pay to the Partnership the amount of the indemnity paid or required to be paid. Each Partner acknowledges and agrees that any information in respect of such Partner (and its direct or indirect owners or account holders) provided to the General Partner or the Partnership in accordance with this Section 11.15(b)may be disclosed to any government, tax authority or withholding agent or any other Person to whom such disclosure is required by DAC 6 or FATCA or necessary to avoid any withholding tax or penalties under DAC 6 or FATCA.

 

  

§ 11.16

 

(c) The General Partner shall determine all matters, and shall be authorized to take any actions necessary, with respect to preparing and filing any U.S. federal, state or local or non-U.S. tax return of the Partnership and any audit, examination or investigation (including any judicial or administrative proceeding) of the Partnership by any U.S. federal, state or local or non-U.S. taxing authority (including whether to make an election under Section 6226 of the Code or any similar provision of any state or local or non-U.S. tax laws with respect to any audit or other examination of the Partnership). If the General Partner causes the Partnership to make an election under Section 6226 of the Code or any similar provision of any state or local or non-U.S. tax laws with respect to any audit adjustment of any item of the Partnership’s income, gain, loss, deduction or credit (or adjustment of the allocation of any such items among the Partners), each Partner shall comply with the requirements set forth in Section 6226 of the Code or any similar provision of any state or local or non-U.S. tax laws (and any applicable guidance issued by the applicable taxing authority) with respect to such election.

 

11.16.      Counsel. Each Limited Partner hereby acknowledges and agrees that Dechert LLP (“Partnership Counsel”) retained by the General Partner in connection with the organization of the Partnership, the offering of interests in the Partnership, the management and operation of the Partnership, or any dispute between the General Partner and any Limited Partner, is acting as counsel to the General Partner and as such does not represent or owe any duty to such Limited Partner or to the Limited Partners as a group in connection with such retention. Each Limited Partner further acknowledges that Dechert LLP shall owe no direct duties to such Limited Partner. In the event that any dispute or controversy arises between any Limited Partner and the Partnership, or between any Limited Partner and the General Partner and/or any of its Affiliates that Dechert LLP represents, then each Limited Partner agrees that Dechert LLP may represent the Partnership or such General Partner and/or its Affiliates in any such dispute or controversy to the extent permitted by the New York Rules of Professional Conduct or similar rules in any other jurisdiction, and each Limited Partner hereby consents to such representation. Each Limited Partner further acknowledges that, whether or not the Partnership Counsel has in the past represented such Limited Partner with respect to other matters, the Partnership Counsel has not represented the interests of any Limited Partner in the preparation and negotiation of this Agreement.

 

11.17.      Compliance with Anti-Money Laundering Requirements. Notwithstanding any other provision of this Agreement to the contrary, the General Partner, in its own name and on behalf of the Partnership, shall be authorized without the consent of any Person, including any other Partner, to take such action (including requiring any Limited Partner to provide it with such information) as it determines to be necessary or advisable to comply with any anti-money laundering or anti-terrorist laws, rules, regulations, directives or special measures, including the actions contemplated by the Subscription Agreements.

 

  

§ 11.18

 

11.18.      Affiliated Transactions. The Partnership shall at no time hold 25% or more of the then-outstanding BDC Shares, and the General Partner shall use its commercially reasonable efforts to reduce the number of BDC Shares then held by the Partnership to the extent it determines that there is a reasonable possibility that it may exceed such threshold within 30 days. In addition, for so long as the Partnership holds 5% or more of the then-outstanding BDC Shares, the General Partner shall take such steps, as shall its Affiliates, including the investment adviser to the BDC to take such steps, in each case as may be reasonably necessary to ensure that no transaction occurs in violation of Section 57 under the Investment Company Act to which a Limited Partner may be a party; provided, that to the extent any Limited Partner and the BDC may be parties to a proposed transaction that would otherwise violate Section 57(d) under the Investment Company Act, the General Partner and its Affiliates shall use commercially reasonable efforts to cause the board of directors of the BDC to approve the participation of a Limited Partner in such transaction in the manner provided for under Section 57(f) of the Investment Company Act.

 

11.19.      Waiver of Certain Actions. Each of the Limited Partners hereby agree not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any action, suit, arbitration, investigation, examination, litigation, lawsuit or other proceeding, whether civil, criminal or administrative, by or before a governmental authority (each, a “Proceeding”), derivative or otherwise, against either of BDC Investment Adviser or the BDC, or any of their respective subsidiaries or successors: (1) challenging the validity of, or seeking to enjoin or delay the operation or performance of, any provision of this Agreement, the Subscription Agreement or the BDC’s Subscription Agreement; or (2) to the fullest extent permitted under any domestic (federal, state or local) or foreign laws, rules, regulations, orders, judgments or decrees promulgated by any governmental authority, alleging a breach of any duty of the BDC Investment Adviser or of the BDC’s board of directors in connection with this Agreement or the transactions contemplated hereby; provided that, this Section 11.19 shall not apply to any Proceeding brought by a Limited Partner to enforce the terms of this Agreement or any other agreement or alleging any breach of any provision of this Agreement or any other agreement by BDC Investment Adviser or the BDC.

 

11.20.      No Solicitation. The Limited Partners shall not, and each of the Limited Partners shall cause its respective consolidated subsidiaries not to, and each shall use commercially reasonable efforts to cause its Affiliates and representatives not to, take any action that would frustrate or otherwise impede the consummation of the transactions discussed herein and the fulfillment of their respective obligations expressly set forth in this Agreement.

 

11.21.      [Intentionally Omitted].

 

  

§ 11.22

 

11.22.      Survival

 

. The obligations of each Partner pursuant to Sections 4.4 (Indemnity), 5.2 (LP payback), 9.1 (Term), 10.6 (tax advances), 11.4 (confidentiality), 11.9 (governing law; submission to jurisdiction), 11.15 (other tax matters), 11.19 (waiver of certain actions) and this Section 11.22 shall survive the termination or expiration of this Agreement and the termination of the Partnership.

 

[Remainder of page has been left blank intentionally.]

 

 

IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto and is intended to be and is hereby delivered on the date first above written.

 

	GENERAL PARTNER:
	CDL Tender Fund 2022-1 GP, L.L.C.
	By:	/s/ David Lobe
		Name: David Lobe
		Title:   Authorized Signatory
	INITIAL LIMITED PARTNER:
	CARLYLE SLP LTD., solely to reflect its withdrawal as Initial Limited Partner
	By:	/s/ David Lobe
		Name: David Lobe
		Title:   Director

 

 

	LIMITED PARTNERS:
	All Limited Partners as of the date hereof and all Limited Partners now and hereafter admitted pursuant to powers of attorney now and hereafter granted to the General Partner
	by: CDL Tender Fund 2022-1 GP, L.L.C., as agent or attorney-in-fact for the Limited Partners subscribing for Interests as set forth in the books and records of the Partnership
	By:	/s/ David Lobe
		Name: David Lobe
		Title:   Authorized Signatory

 

 

---

 

 

Exhibit (d)(2)

 

Execution Version

 

Voting Agreement

 

This Voting Agreement (this “Agreement”), dated as of April 4, 2022 is entered into by and among Cliffwater Corporate Lending Fund (the “Investor”), a closed-end management investment company that is registered with the U.S. Securities and Exchange Commission (the “SEC”) under the Investment Company Act of 1940, as amended (the “1940 Act”), and Cliffwater LLC (“Cliffwater Adviser”), a Delaware limited liability company, on the one hand, and Carlyle Credit Solutions, Inc., a Maryland corporation (the “BDC”), on the other hand. The Investor, Cliffwater Adviser and the BDC are each sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

 

WHEREAS, Cliffwater Adviser serves as investment adviser to the Investor pursuant to an investment advisory agreement;

 

WHEREAS, Cliffwater Adviser and the Investor desire for the Investor to make a US$50 million capital commitment to be admitted as a limited partner in CDL Tender Fund 2022-1, L.P., a Delaware limited partnership (the “Feeder Fund”), subject to the terms of the amended and restated limited partnership agreement (as amended, restated, and supplemented from time to time, the “Partnership Agreement”) and subscription agreement (as amended, restated, and supplemented from time to time, the “Feeder Fund Subscription Agreement”) of the Feeder Fund, and to take, or agree, acknowledge and consent to the taking of, certain related actions (collectively, the “Transactions”);

 

WHEREAS, the sole purpose of the Feeder Fund is to acquire shares of Company Common Stock (as defined below), including through participation in the Special Tender Offer (as defined below) and to engage in such other activities as are permitted by the Partnership Agreement or are incidental or ancillary thereto as the Feeder Fund’s general partner shall deem necessary or advisable, all upon the terms and conditions set forth in the Partnership Agreement;

 

WHEREAS, pursuant to the Partnership Agreement, whenever any consent or vote of the holders of shares of the Company Common Stock is solicited, the Feeder Fund’s general partner shall solicit the consent or vote of the Feeder Fund’s limited partners, including the Investor, and the Feeder Fund’s general partner shall cause the Feeder Fund to provide its consent or vote to the BDC with respect to the shares of Company Common Stock then held by the Feeder Fund in the same ratio as the Feeder Fund’s limited partners, including the Investor, consent or vote under the Partnership Agreement (the “Pass-Through Voting Mechanism”) and the Investor will be considered the Beneficial Owner of such shares of Company Common Stock;

 

WHEREAS, in connection with the Transactions, Cliffwater Adviser and the Investor are willing to make certain representations, warranties, covenants, and agreements as set forth in this Agreement with respect to the Covered Shares (as defined below); and

 

WHEREAS, in connection with the Transactions, the BDC has requested that Cliffwater Adviser and the Investor, and Cliffwater Adviser and the Investor have agreed to, execute and deliver this Agreement.

 

  

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants, and agreements set forth below and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which are hereby acknowledged, the Parties hereto, intending to be legally bound, do hereby agree as follows:

 

1.           Definitions.

 

When used in this Agreement, the following terms in all of their tenses, cases, and correlative forms shall have the meanings assigned to them in this Section 1.

 

(a)          “Affiliate” of a Person shall mean any other Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the first Person (it being understood that no portfolio company that would be reflected on an entity’s schedule of investments in accordance with the SEC’s Regulation S-X shall be an Affiliate of such Person).

 

(b)          “Beneficially Own” or “Beneficial Ownership” has the meaning assigned to such term in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such rule (in each case, irrespective of whether or not such rule is actually applicable in such circumstance). For the avoidance of doubt, “Beneficially Own” and “Beneficial Ownership” shall also include record ownership of securities and, as used in this Agreement, shall be deemed to include the pro rata portion of shares of the Company Common Stock acquired by the Feeder Fund in the Special Tender Offer or otherwise over which Cliffwater Adviser or the Investor has, or will have, voting power pursuant to the Pass-Through Voting Mechanism or otherwise.

 

(c)          “Beneficial Owner” shall mean the Person who Beneficially Owns the referenced securities.

 

(d)          “Business Day” shall mean any day other than a Saturday, Sunday or a day on which all banking institutions in New York, New York are authorized or obligated by Law or executive order to close.

 

(e)          “CGCIM” shall mean Carlyle Global Credit Investment Management L.L.C., the BDC’s investment adviser.

 

(f)           “Company Common Stock” shall mean shares of common stock, par value $0.01 per share, of the BDC.

 

(g)          “Covered Shares” shall mean all shares of Company Common Stock directly or indirectly Beneficially Owned by Cliffwater Adviser or the Investor as of the date of this Agreement, together with any and all shares of Company Common Stock that Cliffwater Adviser or the Investor purchases, acquires the right to vote, or otherwise acquires direct or indirect Beneficial Ownership of on the date of or after the execution of this Agreement, all of which shall be subject to the terms and conditions of this Agreement and shall constitute Covered Shares for all purposes of this Agreement. For the avoidance of doubt, the pro rata portion of shares of the Company Common Stock acquired by the Feeder Fund in the Special Tender Offer or otherwise over which Cliffwater Adviser or the Investor has, or will have, voting power pursuant to the Pass-Through Voting Mechanism or otherwise shall constitute Covered Shares for all purposes of this Agreement. In the event of any stock split, stock dividend, merger, reorganization, recapitalization, reclassification, combination, exchange of shares, or the like of the capital stock of the BDC affecting the Covered Shares, the terms of this Agreement shall apply to the resulting securities and such resulting securities shall be deemed to be “Covered Shares” for all purposes of this Agreement.

 

  

(h)          “Governmental Authority” shall mean any United States (federal, state or local) or foreign government, or any governmental, regulatory, judicial or administrative authority, agency or commission.

 

(i)           “Law” shall mean any and all domestic (federal, state or local) or foreign laws, rules, regulations, orders, judgments or decrees promulgated by any Governmental Authority.

 

(j)           “Lien” shall mean liens, claims, mortgages, encumbrances, pledges, security interests, charges, bailments (in the nature of a pledge or for purposes of security), deeds of trust, easements, options, rights of first refusal or first offer, rights of way, licenses, deeds of restriction, leases, encroachments, other transfer restrictions thereon or servitudes of any kind.

 

(k)          “Order” shall mean any decree, order, judgment, injunction, temporary restraining order or other order in any Proceeding by or with any Governmental Authority.

 

(l)           “Person” shall mean an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including any Governmental Authority.

 

(m)         “Proceeding” shall mean an action, suit, arbitration, investigation, examination, litigation, lawsuit or other proceeding, whether civil, criminal or administrative, by or before a Governmental Authority.

 

(n)          “Special Tender Offer” shall mean that certain cash tender offer to be conducted by the Feeder Fund in accordance with the 1934 Act, and applicable SEC rules, for shares of Company Common Stock pursuant to the terms of the Partnership Agreement.

 

2.           Representations of Cliffwater Adviser and the Investor.

 

Each of Cliffwater Adviser and the Investor represent and warrant to the BDC that:

 

(a)          Disclosure of all Covered Shares Owned. Neither Cliffwater Adviser nor the Investor Beneficially Own any shares of Company Common Stock as of the date of this Agreement. Following consummation of the Special Tender Offer, the Investor will be a Beneficial Owner of shares of the Company Common Stock.

 

(b)          Power and Authority; Binding Agreement. Each of Cliffwater Adviser and the Investor has full power and authority and legal capacity to enter into, execute, and deliver this Agreement and to perform fully their respective obligations hereunder. This Agreement has been duly and validly executed and delivered by each of Cliffwater Adviser and the Investor and constitutes the legal, valid, and binding obligation of each of Cliffwater Adviser and the Investor, enforceable against each of Cliffwater Adviser and the Investor, respectively, in accordance with its terms except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally.

 

  

(c)          No Conflict. The execution and delivery of this Agreement by Cliffwater Adviser and the Investor do not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Law applicable to either of Cliffwater Adviser or the Investor or result in any breach of or violation of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration, or cancellation of, or result in the creation of any Lien on any of the Covered Shares (whether concurrent with the execution of this Agreement or upon the subsequent acquisition by Cliffwater Adviser or the Investor of Beneficial Ownership of shares of Company Common Stock) pursuant to, any agreement or other instrument or obligation including organizational documents, if applicable, binding upon either of Cliffwater Adviser or the Investor or any of the Covered Shares.

 

(d)          No Consents. No consent, approval, Order, or authorization of, or registration, declaration, or filing with, any Governmental Authority or any other Person on the part of either of Cliffwater Adviser or the Investor is required in connection with the valid execution and delivery of this Agreement.

 

(e)          No Litigation. There is no Proceeding pending against, or, to the knowledge of Cliffwater Adviser or the Investor, threatened against or affecting, Cliffwater Adviser or the Investor that could reasonably be expected to materially impair or materially adversely affect the ability of Cliffwater Adviser or the Investor to perform their respective obligations hereunder or to consummate the transactions contemplated by this Agreement on a timely basis.

 

3.           Representations of the BDC.

 

The BDC represents and warrants to Cliffwater Adviser and the Investor that:

 

(a)          Power and Authority; Binding Agreement. The BDC has full power and authority and legal capacity to enter into, execute, and deliver this Agreement and to perform fully its obligations hereunder. This Agreement has been duly and validly executed and delivered by the BDC and constitutes the legal, valid, and binding obligation of the BDC, enforceable against the BDC in accordance with its terms except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally.

 

(b)          No Conflict. The BDC represents and warrants that the execution and delivery of this Agreement by the BDC do not, and the consummation of any transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Law applicable to the BDC or result in any breach of or violation of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, any agreement or other instrument or obligation including organizational documents, if applicable, binding upon the BDC.

 

(c)          No Consents. No consent, approval, Order, or authorization of, or registration, declaration, or filing with, any Governmental Authority or any other Person on the part of the BDC is required in connection with the valid execution and delivery of this Agreement.

 

(d)          No Litigation. There is no Proceeding pending against, or, to the knowledge of the BDC, threatened against or affecting, the BDC that could reasonably be expected to materially impair or materially adversely affect the ability of the BDC to perform its obligations hereunder or to consummate the transactions contemplated by this Agreement on a timely basis.

 

  

4.           Voting Rights. Due to the Investor’s investment policies applicable to it under the 1940 Act, in the event that, and for so long as, the Investor, together with Cliffwater Adviser (collectively with the Investor, the “Covered Cliffwater Entities”), Beneficially Own more than 4.99% of the outstanding shares of Company Common Stock, the Investor and Cliffwater Adviser hereby irrevocably agree not to vote or cause to be voted, and forego and waive any “voting rights” any such Covered Cliffwater Entity has in respect of, such number of Covered Shares that exceeds 4.99% of the then-outstanding shares of Company Common Stock. For purposes of this Agreement, “voting rights” shall be rights deemed to be the equivalent to the right to vote for the election or removal of a director under applicable interpretations of the term “voting security” under the 1940 Act by the Securities and Exchange Commission or its staff, but for the avoidance of doubt, matters that are presented to the Investor in connection with voting and consent rights afforded to the limited partners of the Feeder Fund under the Partnership Agreement that do not constitute “voting rights” under the 1940 Act, shall not be subject to the provisions of this paragraph.

 

5.           Term and Effectiveness. This Agreement shall become effective and binding upon the Parties hereto as of the first date written above.

 

6.           Termination. This Agreement shall continue until terminated by mutual written agreement of the Parties hereto or by written notice from any Party upon material breach by another Party of its obligations hereunder, in each case upon at least 60 days’ written notice. Nothing in this Section 6 shall relieve or otherwise limit the liability of any Party for any intentional breach of this Agreement prior to such termination.

 

7.           Further Assurances. Each of Cliffwater Adviser and the Investor agrees, from time to time, and without additional consideration, to execute and deliver such additional proxies, documents, and other instruments and to take all such further action as the BDC may reasonably request to consummate and make effective the transactions contemplated by this Agreement.

 

8.           Specific Performance. Each Party hereto acknowledges that it will be impossible to measure in money the damage to the other Party if a Party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other Party will not have an adequate remedy at Law or damages. Accordingly, each Party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at Law or damages, is the appropriate remedy for any such failure and will not oppose the seeking of such relief on the basis that the other Party has an adequate remedy at Law. Each Party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with the other Party’s seeking or obtaining such equitable relief.

 

9.           Entire Agreement. Except as set forth herein, this Agreement (including the exhibits, annexes and appendices hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof. The provisions of this Section 9 shall survive any termination of this Agreement.

 

10.         Notices. Except as otherwise noted, all notices, including all information that any Party is required to provide under the terms of this Agreement, shall be in writing and shall be delivered to the relevant contacts identified below (which may be changed from time to time upon written notice to the other party) by (a) Federal Express or other comparable international overnight courier; (b) registered or certified mail, postage prepaid, return receipt requested; or (c) e-mail (to all parties set forth below):

 

  

If to the BDC:

 

Carlyle Credit Solutions, Inc.

c/o Carlyle Global Credit Investment Management L.L.C.

One Vanderbilt Avenue, Suite 3400

New York, NY 10017

 

Attention: Joshua Lefkowitz

 

E-mail: [email protected]

Telephone: (212) 813-4900

 

with a copy (which shall not constitute notice) to:

 

Dechert LLP

Three Bryant Park

1095 Avenue of the Americas

New York, NY 10036

 

Attention: Richard Horowitz, Esq.

 

E-mail: [email protected]

Telephone: (212) 698-3525

 

If to Cliffwater Adviser and/or the Investor:

 

If to Cliffwater Adviser:

 

Cliffwater LLC

4640 Admiralty Way, 11th Floor

Marina del Rey, CA 90292

 

Attention: Jonathan Rogal, Esq.

 

E-mail: [email protected]

Telephone: (310) 448-5000

 

  

If to the Investor:

 

Cliffwater Corporate Lending Fund

c/o Cliffwater LLC

4640 Admiralty Way, 11th Floor

Marina del Rey, CA 90292

 

Attention: Jonathan Rogal, Esq.

E-mail: [email protected]

Telephone: (310) 448-5000

 

with a copy in each case (which shall not constitute notice) to:

 

Dechert LLP

1900 K Street NW

Washington, DC 20006

 

Attention: William J. Bielefeld, Esq.

 

E-mail: [email protected]

Telephone: (202) 261-3386

 

All notices, demands or requests so given will be deemed given when actually received; provided that any notice received by electronic mail or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) or on any day that is not a Business Day shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day; provided, further, that notice of any change to the address or any of the other details specified in or pursuant to this Section 10 shall not be deemed to have been received until, and shall be deemed to have been received upon, the later of the date specified in such notice or the date that is two (2) Business Days after such notice would otherwise be deemed to have been received pursuant to this Section 10. The provisions of this Section 10 shall survive any termination of this Agreement.

 

  

11.         Miscellaneous.

 

(a)          Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed and construed in accordance with the Laws of the State of New York applicable to contracts made and performed entirely within such state, without regard to any applicable conflicts of law principles that would cause the application of the Laws of another jurisdiction, except to the extent governed by the 1940 Act, in which case the latter shall control. The Parties hereto agree that any Proceeding brought by any Party to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the state courts in New York County, New York, or if jurisdiction over the matter is vested exclusively in federal courts, the United States District Court for the Southern District of New York, and the appellate courts to which orders and judgments therefore may be appealed (collectively, the “Acceptable Courts”). Each of the Parties hereto submits to the jurisdiction of any Acceptable Court in any Proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, and hereby irrevocably waives the benefit of jurisdiction derived from present or future domicile or otherwise in such Proceeding. Each Party hereto irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any Proceeding in any such Acceptable Court or that any such Proceeding brought in any such Acceptable Court has been brought in an inconvenient forum. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY. Each Party hereto (a) certifies that no representative of any other Party has represented, expressly or otherwise, that such other Party would not, in the event of any action, suit or proceeding, seek to enforce the foregoing waiver, (b) certifies that it makes this waiver voluntarily and (c) acknowledges that it and the other Parties hereto have been induced to enter into this Agreement, by, among other things, the mutual waiver and certifications in this Section 11(a).

 

(b)          Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

 

(c)          Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. This Agreement shall become binding when any two or more counterparts thereof, individually or taken together, bear the signatures of the parties hereto. For purposes hereof, a facsimile copy of this Agreement, including the signature pages hereto, shall be deemed an original.

 

(d)          Section Headings. All section headings in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

(e)          Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the Parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other Parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective permitted successors and assigns. Any attempted assignment in violation of this Section 11(e) shall be null and void.

 

  

(f)           No Third-Party Beneficiaries. Except as expressly set forth herein, this Agreement is not intended to and shall not confer upon any Person other than the Parties hereto any rights or remedies hereunder.

 

(g)          No Investment Limitations. The Parties confirm that nothing herein shall be deemed to prohibit any Party or any of its Affiliates from: (i) making investments generally in other entities engaged in investment activities similar to those of, or with a similar investment strategy to, the BDC or the other Parties hereto; or (ii) investing directly in any investment opportunity which falls within the BDC’s investment parameters.

 

(h)          Survival. The provisions of this Section 11 shall survive any termination of this Agreement.

 

(i)           Amendment. This Agreement may be amended by mutual written consent of the Parties. No amendment, modification, or supplement of any provision of this Agreement will be valid or effective unless made in writing and signed by a duly authorized representative of each Party.

 

[Remainder of page intentionally left blank; signature pages follow]

 

  

IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of the date first written above.

 

	Carlyle Credit Solutions, Inc.
	By:	/s/ Tom Hennigan
	Name: Tom Hennigan
	Title: Chief Financial Officer

 

	CLIFFWATER CORPORATE LENDING FUND
	By:	/s/ Stephen Nesbitt
	Name: Stephen Nesbitt
	Title: President

 

	CLIFFWATER LLC
	By:	/s/ Stephen Nesbitt
	Name: Stephen Nesbitt
	Title: Chief Executive Officer

 

 

 

 

Exhibit (d)(3)

 

April ___, 2022

 

Subscription Documents For

 

CARLYLE CREDIT SOLUTIONS, INC.

 

 

DIRECTIONS FOR THE COMPLETION

OF THE SUBSCRIPTION DOCUMENTS

 

Prospective investors must complete a Subscription Agreement (the “Subscription Agreement”), the Investor Questionnaire (the “Investor Questionnaire”) and any necessary attachments (the Subscription Agreement, the Investor Questionnaire and all such attachments collectively, the “Subscription Documents”) contained in this package in the manner described below. Capitalized terms not defined herein are used as defined in the Confidential Private Placement Memorandum of Carlyle Credit Solutions, Inc., a Maryland Corporation (as amended from time to time). For purposes of these Subscription Documents, the “Investor” is the person or entity for whose account the common stock is being purchased and that can satisfy the representations and warranties set forth in the Subscription Documents. Another person or entity with investment authority may execute the Subscription Documents on behalf of the Investor, but should indicate the capacity in which it is doing so and the name of the Investor.

 

1.           Subscription Agreement:

 

(a)          The Investor should date, print the name of the Investor and sign (and print name, capacity and title of signatory, if applicable) on the signature page to the Subscription Agreement.

 

(b)          If applicable, each Investor should complete the acknowledgment form substantially in the form of Appendix E (making any changes to reflect the Investor’s circumstances).

 

2.           Investor Questionnaire:

 

(a)          In Section A, each Investor should fill in its name, type of entity, address, tax identification or social security number, contact person(s), telephone and facsimile numbers, email address, and the other requested information.

 

(b)          Each Investor should check the box or boxes in Section B which are next to the category or categories under which the Investor qualifies as an “accredited investor”.

 

(c)          Each Investor that is an individual should respond to the question in Section C.

 

(d)          Each Investor that is an entity should provide the information and respond to the questions in Section D.

 

(e)          Each Investor should respond to the questions in Section E and Section F.

 

(f)           Print the name of the Investor and sign (and print name, capacity and title of signatory, if applicable) on the signature page to the Investor Questionnaire.

 

3.           Customer Identification Program (for investors not investing through a platform): Documentation Requirements (if the documentation may have previously been submitted, please contact the Company to confirm.)

 

(a)          Formation:

 

Organized entities, including corporations, partnerships, limited liability companies, and trusts: provide a certificate of formation and formation agreement.

 

 

Copy No.:

For the Exclusive Use of:

 

(b)          Identification:

 

Investors who are natural persons: provide a current (i.e. non-expired) copy of a government issued photo identification.

 

Corporations, partnerships, limited liability companies, and trusts: provide a current (i.e. non-expired) copy of a government issued photo identification of natural persons who ultimately, directly or indirectly, benefit from 10% or more of the proceeds of the entity or hold 10% or more of the control rights.

 

Upon review of the above documents, the Company may require additional documentation in order to satisfy its requirements for Know Your Customer and Anti-Money Laundering.

 

4.           Tax Forms: Each U.S. Investor is required to fill in and sign and date a Form W-9 and each non-U.S. investor is required to fill in and date the relevant Form(s) W-8 (W-8BEN, W-8BEN E, W-8IMY, W-8ECI or W-8EXP), as applicable, in accordance with the instructions to such Form, and in the event that any applicable reduction or exemption from U.S. federal withholding tax is claimed, is required to provide all applicable attachments or addendums as required to claim such exemption or reduction.

 

5.           Evidence of Authorization: Each Investor must provide valid evidence of authorization, such as a list of authorized agents, and a current copy of a government issued photo identification for the individual(s) authorized to sign the Subscription Documents.

 

For Corporations:

 

Generally, Investors that are corporations must submit certified corporate resolutions authorizing the subscription and identifying the corporate officer empowered to sign the Subscription Documents.

 

For Partnerships:

 

Partnerships must submit a certified copy of the partnership certificate (in the case of limited partnerships) or partnership agreement identifying the general partners.

 

For Limited Liability Companies:

 

Limited liability companies must submit a certified copy of the limited liability operating agreement or certificate of formation identifying the manager or managing member, as applicable, empowered to sign the Subscription Documents.

 

For Trusts:

 

Trusts must submit a copy of the trust agreement.

 

For Employee Benefit Plans:

 

Employee benefit plans must submit a certificate of an appropriate officer certifying that the subscription has been authorized and identifying the individual empowered to sign the Subscription Documents.

 

 

Copy No.:

For the Exclusive Use of:

 

6.           Delivery of Subscription Documents:

 

Two (2) original completed and executed copies of the Subscription Agreement and the Investor Questionnaire, together with the original Form W-9 or W-8 (W-8BEN, W-8BEN-E, W-8IMY, W-8ECI or W-8EXP), as applicable, the acknowledgment form and any required evidence of authorization, should be delivered to the Company at the following address:

 

Overnight (UPS, FedEx, DHL, etc.)	Post Office (USPS) First Class Mailings
State Street Bank and Trust Company ATTN: Carlyle BDC 1 Heritage Drive, MAILSTOP OHD0100 North Quincy, MA 02171	State Street Bank and Trust Company ATTN: Carlyle BDC Box 5493 Boston, MA 02206   MAILSTOP: OHD0100

 

In addition, please send (i) the completed and executed Subscription Agreement, (ii) the completed and executed Investor Questionnaire, (iii) the completed and executed acknowledgment form, (iv) the completed Form W-9 or W-8 (W-8BEN, W-8BEN-E, W-8IMY, W-8ECI or W-8EXP), as applicable, and (v) any required evidence of authorization to State Street by e-mail to [email protected] and [ ]@StateStreet.com as soon as possible.

 

Inquiries regarding subscription procedures (including if the Investor Questionnaire indicates that any Investor’s response to a question requires further information) should be directed to [email protected].

 

7.           Wire Instructions:

 

[Reserved].

 

[remainder of page intentionally left blank] 

 

 

SUBSCRIPTION AGREEMENT

 

Carlyle Credit Solutions, Inc.

c/o State Street Bank & Trust Company

1 Heritage Drive, Mailstop OHD0100

North Quincy, MA 02171

 

Ladies and Gentlemen:

 

1.           Subscription.

 

(a)          The undersigned (the “Investor”) agrees to purchase the amount of shares of common stock, par value $0.01 per share, (“Shares”) of Carlyle Credit Solutions, Inc. (the “Company,” “we,” “our” or “us”) set forth on the signature page below. The Investor is not subscribing for a capital commitment for Shares (“Capital Commitment”) pursuant to this Subscription Agreement and shall not be deemed to have a Capital Commitment to the Company solely by virtue of this Subscription Agreement. Rather, this Subscription Agreement is being entered into in connection with that certain Amended and Restated Limited Partnership Agreement of the Investor, dated as of April 4, 2022 (as amended, restated, and supplemented from time to time, the “Partnership Agreement”), pursuant to which the Investor has agreed to engage in the Special Tender Offer (as defined in the Partnership Agreement) to purchase Shares. The Investor acknowledges and agrees that this subscription for Shares is irrevocable on the part of the Investor. The Investor has read, acknowledges and is aware of all the terms and provisions of the Company’s Confidential Private Placement Memorandum, as amended, restated and/or supplemented from time to time (the “Memorandum”), the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (the “2021 Form 10-K”), the Company’s definitive proxy statement on Schedule 14A filed with the U.S. Securities and Exchange Commission (the “SEC”) on April 27, 2021 (the “2021 Annual Meeting Proxy Statement”), the Company’s definitive proxy statement on Schedule 14A for the Company’s special meeting of stockholders (the “Special Meeting”), filed with the SEC on November 23, 2021 (including any additional solicitation materials relating to the Special Meeting filed by the Company with the SEC from time to time as of the date hereof, the “Special Meeting Proxy Materials”), the Company’s Articles of Amendment and Restatement attached hereto as Appendix A, as amended from time to time (the “Charter”), the Company’s Bylaws attached hereto as Appendix B, as amended from time to time (the “Bylaws”), the Amended and Restated Investment Advisory Agreement with Carlyle Global Credit Investment Management L.L.C., the Company’s investment adviser (the “Adviser”), attached hereto as Appendix C, as amended from time to time (the “Advisory Agreement”), the Administration Agreement between the Company and Carlyle Global Credit Administration L.L.C., the Company’s administrator (the “Administrator”) attached hereto as Appendix D, as amended from time to time (the “Administration Agreement,” and together with the Memorandum, the 2021 Form 10-K, the 2021 Annual Meeting Proxy Statement, the Special Meeting Proxy Materials, the Charter, the Bylaws, the Advisory Agreement and the other documents publicly filed by the Company with the SEC, the “Operative Documents”), together with this Subscription Agreement (the “Subscription Agreement”). Capitalized terms not defined herein are used as defined in the Memorandum. The Company has and expects to enter into separate subscription agreements relating to one or more private offerings of its common stock, which may occur from time to time in the Company’s discretion (the “Other Subscription Agreements,” and, together with this Subscription Agreement, the “Subscription Agreements”) with other investors (the “Other Investors,” and together with the Investor, the “Investors”), providing for the sale of Shares to the Other Investors. This Subscription Agreement and the Other Subscription Agreements are separate agreements, and the sales of Shares to the undersigned and the Other Investors are separate sales. Nothing in this Subscription Agreement shall prohibit the Company from entering into Other Subscription Agreements and performing the Company’s obligations or exercising the Company’s rights under such Other Subscription Agreements, or otherwise issuing any Shares, or conducting any offer or sale of Shares, in the future, in the Company’s discretion.

 

 

Copy No.:

For the Exclusive Use of:

 

(b)          The Investor agrees to purchase from the Company’s stockholders all Shares validly tendered and not validly withdrawn prior to the expiration date of the Special Tender Offer, as defined in the Partnership Agreement, the details and specific terms of which shall be set forth in the Investor’s Offer to Purchase (the “Offer to Purchase”), which will be furnished to the Company’s stockholders and will be annexed to the Investor’s Schedule TO to be filed with the SEC in connection with the Special Tender Offer, up to a maximum aggregate amount of $100,000,000 of Shares, at a purchase price equal to $20.13 per Share, payable in accordance with the terms set forth in the Offer to Purchase and the related letter of transmittal relating to the Special Tender Offer.

 

2.           Closings.

 

(a)          [Reserved].

 

(b)          The Investor agrees to provide any information reasonably requested by the Company to verify the accuracy of the representations contained herein, including without limitation the investor questionnaire (the “Investor Questionnaire”).

 

(c)          

 

(i)          [Reserved].

 

(ii)         For the purposes of this Subscription Agreement:

 

(A)         “Business Day” has the meaning ascribed to it in Rule 14d-1(g)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

(B)         [Reserved].

 

(C)         [Reserved].

 

(D)         [Reserved].

 

(d)          [Reserved].

 

(e)          In the event that the Investor is permitted by the Company to make a capital commitment to purchase Shares on a date after the date of this Subscription Agreement, such Investor will be required to enter into a separate Subscription Agreement with the Company, it being understood and agreed that such separate Subscription Agreement will be considered to be an Other Subscription Agreement for the purposes of this Subscription Agreement.

 

3.           Capital Drawdowns.

 

(a)          [Reserved].

 

(b)          [Reserved].

 

(c)          [Reserved].

 

(d)          [Reserved].

 

 

Copy No.:

For the Exclusive Use of:

 

(e)          State Street Bank and Trust Company will act as transfer agent and registrar for the Shares (the “Transfer Agent”), unless and until, either the Company or the Transfer Agent decides to terminate the agreement between the parties.

 

(f)          The Investor acknowledges that the Company’s investment period (the “Investment Period”) shall be indefinite.

 

(g)          [Reserved].

 

(h)          [Reserved].

 

4.           Pledging.

 

(a)          [Reserved].

 

(b)          The Company is hereby authorized to provide to or receive from any lender or other creditors or holders of other obligations or guarantees, including any agent or trustee acting on their behalf, financial information related to the Investor, subject to applicable law.

 

(c)          [Reserved].

 

(d)          [Reserved].

 

5.           Distributions; Returned Capital; and Recycling.

 

(a)          As described more fully in the Memorandum and the 2021 Form 10-K, subject to the requirements of Section 852(a) of Subchapter M of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and the terms of any borrowings or other financings or similar obligations, and as determined by the Board in its discretion, the Company generally intends to distribute to its Investors, out of assets legally available for distribution, (i) pro rata based on the number of Shares held by the Investor, before the end of each taxable year, or in certain cases, during the following taxable year, net proceeds attributable to the repayment or disposition of investments (together with any interest, dividends and other net cash flow in respect of such investments), except to the extent such proceeds from repayment or disposition are retained for reinvestment, (ii) substantially all of the Company’s available earnings, on a quarterly basis (i.e., proceeds received in respect of interest payments, dividends or fees, net of expenses, as opposed to proceeds received in connection with the disposition or repayment of an investment), (iii) all of the Company’s investment company taxable income and net capital gain for each taxable year in order to qualify for treatment as a regulated investment company under Subchapter M of the Code, and avoid the imposition of federal income taxes on the Company under Section 852(b) of the Code, for any such taxable year, and (iv) for each calendar year the Company’s ordinary income and capital gain net income realized during the periods set forth in Section 4982(b) of the Code to the extent required for the Company to avoid imposition of federal excise tax under Section 4982 of the Code for any such calendar year. Without limiting the foregoing, the Investor specifically agrees and consents that, depending on the level of taxable income and net capital gain earned in a year, the Company may choose to carry forward taxable income or net capital gain for distribution in the following year and pay the applicable U.S. federal excise tax.

 

(b)          [Reserved].

 

(c)          [Reserved].

 

 

Copy No.:

For the Exclusive Use of:

 

(d)          Subject to the requirements of Section of Section 852(a) of the Code and the terms of any borrowings or other financings or similar obligations, proceeds realized by the Company from the sale or repayment of any investment (as opposed to investment income) (but not in excess of the cost of any such investment), may be retained and be used by the Company for purposes of making investments or paying management fees, incentive fees or Company expenses.

 

6.           [Reserved].

 

7.           [Reserved].

 

8.           Representations and Warranties of the Investor. The Investor represents and warrants as follows:

 

(a)          This Subscription Agreement has been duly authorized, executed and delivered by the Investor and, upon due authorization, execution and delivery by the Company, will constitute the valid and legally binding agreement of the Investor enforceable in accordance with its terms against the Investor, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time in effect; (ii) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (iii) considerations of public policy or the effect of applicable law relating to fiduciary duties.

 

(b)          The Shares to be acquired hereunder are being acquired by the Investor for the Investor’s own account for investment purposes only and not with a view to resale or distribution.

 

(c)          The Investor understands that the Company (i) has filed an election to be treated as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and (ii) has filed an election to be treated as a regulated investment company within the meaning of Section 851 of the Code, for U.S. federal income tax purposes; pursuant to those elections, the Investor will be required to furnish certain information to the Company as required under Treasury Regulations § 1.852-6(a) and other regulations. If the Investor is unable or refuses to provide such information directly to the Company, the Investor understands that it will be required to include additional information on its income tax return as provided in Treasury Regulation § 1.852-7. The Company has filed a registration statement on Form 10 (the “Form 10 Registration Statement”) for its common stock with the SEC under the Exchange Act. The Form 10 Registration Statement is not the offering document pursuant to which the Company is conducting this offering and may not include all information regarding the Company contained in the Memorandum and the 2021 Form 10-K; accordingly, Investors should rely exclusively on information contained in the Operative Documents and the Company’s other filings with the SEC in making their investment decisions.

 

(d)          The Investor understands that the Company’s offering and sale of the Shares are intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), applicable U.S. state securities laws and the laws of any non-U.S. jurisdictions by virtue of the private placement exemption from registration provided in Section 4(a)(2) of the Securities Act, exemptions under applicable U.S. state securities laws and exemptions under the laws of any non-U.S. jurisdictions, and it agrees that any Shares acquired by the Investor may not be sold, offered for sale, exchanged, transferred, assigned, pledged, hypothecated or otherwise disposed of (each, a “Transfer”) in any manner that would require the Company to register the Shares under the Securities Act, under any U.S. state securities laws or under the laws of any non-U.S. jurisdictions. The Investor understands that the Company requires each investor in the Company to be an “accredited investor” as defined in Rule 501(a) of Regulation D of the Securities Act (“Accredited Investor”) and the Investor represents and warrants that it is an Accredited Investor.

 

 

Copy No.:

For the Exclusive Use of:

 

(i)          The Investor understands that the offering and sale of the Shares in non-U.S. jurisdictions may be subject to additional restrictions and limitations, and represents and warrants that it is acquiring its Shares in compliance with all applicable laws, rules, regulations and other legal requirements applicable to the Investor including, without limitation, the legal requirements of jurisdictions in which the Investor is resident and in which such acquisition is being consummated. Furthermore, the Investor understands that all offerings and sales made outside of the United States will be made pursuant to Regulation S under the Securities Act.

 

(e)          The Investor may not Transfer any of its Shares unless (A) the Company provides its prior written consent, (B) the Transfer is made in accordance with applicable securities laws and (C) the Transfer is otherwise in compliance with the transfer restrictions set forth in Appendix F. No Transfer will be effectuated except by registration of the Transfer on the Company books. Each transferee must agree to be bound by these restrictions and all other obligations as an investor in the Company.

 

(i)          The Investor acknowledges that the Investor is aware and understands that there are other substantial restrictions on the transferability of Shares under this Subscription Agreement, the Operative Documents and under applicable law including, but not limited to, the fact that (A) there is no established market for the Shares and it is likely that no public market for the Shares will develop; (B) the Shares are not currently, and the Investor has no rights to require that the Shares be, registered under the Securities Act or the securities laws of the various states or any non-U.S. jurisdiction and therefore cannot be Transferred unless subsequently registered or unless an exemption from such registration is available; and (C) the Investor may have to hold the Shares herein subscribed for and bear the economic risk of this investment indefinitely, and it may not be possible for the Investor to liquidate its investment in the Company. The Investor acknowledges that it has no need for liquidity in this investment, has the ability to bear the economic risk of this investment, has the ability to retain its Shares for an indefinite period and at the present time and in the foreseeable future can afford a complete loss of this investment.

 

(ii)         Notwithstanding any other provisions of this Subscription Agreement, the Investor covenants that it will not Transfer all or any part of the Shares (or purport to do so) if such Transfer would cause (A) the Company or the Adviser to be in violation of the U.S. Bank Secrecy Act, as amended, the U.S. Money Laundering Control Act of 1986, as amended, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), as amended, or any similar U.S. federal, state or non-U.S. law or regulation; or (B) the Shares to be held by a country, territory, entity or individual currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or any entity or individual that resides or has a place of business in, or is organized under the laws of, a country or territory that is subject to any sanctions administered by OFAC.

 

(f)           The Investor has been furnished, or otherwise has access to, and has carefully read this Subscription Agreement, each Operative Document and the Company’s other filings with the SEC, in each case as amended, restated and/or supplemented through the date of this Subscription Agreement, a current copy of the Proxy Voting Policies and Procedures of the Adviser and, to the extent the Investor is a natural person, a current copy of the Carlyle Credit Solutions, Inc. Privacy Notice. The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, is able to bear the risks of an investment in the Shares and understands the risks of, and other considerations relating to, a purchase of Shares, including, but not limited to, the matters set forth under the caption “Risk Factors” in the Memorandum and in the 2021 Form 10-K.

 

 

Copy No.:

For the Exclusive Use of:

 

(g)          To the full satisfaction of the Investor, the Investor has been furnished any materials the Investor has requested relating to the Company, the offering of Shares or any statement made in the Memorandum or the Company’s SEC filings, and the Investor has been afforded the opportunity to ask questions of representatives of the Company concerning the terms and conditions of the offering and to obtain any additional information necessary to verify the accuracy of any representations or information set forth in the Memorandum and the Company’s SEC filings.

 

(h)          Other than as set forth in this Subscription Agreement, the Operative Documents and any separate agreement in writing with the Company executed in conjunction with the Investor’s agreement to purchase Shares, the Investor is not relying upon any other information (including, without limitation, any advertisement, article, notice or other communication published in any newspaper, magazine, website or similar media or broadcast over television or radio, and any seminars or meetings whose attendees have been invited by any general solicitation or advertising), representation or warranty by the Company, its Adviser or any affiliate of the foregoing or any agent of them, written or otherwise, in determining to invest in the Company and the Investor understands that the Memorandum is not intended to convey tax or legal advice. The Investor has consulted to the extent deemed appropriate by the Investor with the Investor’s own advisers as to the financial, tax, legal, accounting, regulatory and related matters concerning an investment in Shares and on that basis understands the financial, tax, legal, accounting, regulatory and related consequences of an investment in Shares, and believes that an investment in the Shares is suitable and appropriate for the Investor.

 

(i)           If the Investor is not a natural person, (A) the Investor has the power and authority to enter into this Subscription Agreement and each other document required to be executed and delivered by the Investor in connection with this subscription for Shares, and to perform its obligations hereunder and thereunder and consummate the transactions contemplated hereby and thereby and (B) the person signing this Subscription Agreement on behalf of the Investor has been duly authorized to execute and deliver this Subscription Agreement and each other document required to be executed and delivered by the Investor in connection with this subscription for Shares. If the Investor is a natural person, the Investor has all requisite legal capacity to acquire and hold the Shares and to execute, deliver and comply with the terms of each of the documents required to be executed and delivered by the Investor in connection with this subscription for Shares. The execution and delivery by the Investor of, and compliance by the Investor with, this Subscription Agreement and each other document required to be executed and delivered by the Investor in connection with this subscription for Shares does not violate, represent a breach of, or constitute a default under, any instruments governing the Investor, any law, regulation or order, or any agreement to which the Investor is a party or by which the Investor is bound.

 

(j)           The Investor: (A)(i) is not registered or required to be registered as an “investment company” under the Investment Company Act; (ii) has not elected to be regulated as a business development company under the Investment Company Act; and (iii) is not relying on the exception from the definition of “investment company” under the Investment Company Act set forth in Section 3(c)(1) or 3(c)(7) thereunder or (B) is otherwise permitted to acquire and hold more than 3% of the outstanding voting securities of a business development company like the Company.

 

(k)          The Investor understands that the Company is not registered as an investment company under the Investment Company Act, and it acknowledges and agrees that the Company does not intend to register as an investment company under the Investment Company Act.

 

(l)           Representations for Non-U.S. Persons.

 

 

Copy No.:

For the Exclusive Use of:

 

(i)          If the Investor is not a “United States Person,” as defined below (a “non-U.S. Person”), the Investor has heretofore notified the Company in writing of such status. For this purpose, “United States Person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision thereof, an estate the income of which is subject to United States federal income taxation regardless of its source, or any trust (A) the administration of which may be subject to the primary supervision of a U.S. court and (B) the authority to control all of the substantial decisions of which is held by one or more U.S. persons.

 

(ii)         The Investor will notify the Company immediately if the Investor becomes a United States Person.

 

(iii)        The Investor is acquiring the Shares for its own account for investment purposes only and is not subscribing on behalf of or funding its commitment with funds obtained from a United States Person.

 

(iv)        Except for offers and sales to discretionary or similar accounts held for the benefit or account of a non-U.S. Person by a U.S. dealer or other professional fiduciary, all offers to sell and offers to buy the Shares were made to or by the Investor while the Investor was outside the United States and at the time the Investor’s order to buy the Shares originated (and at the time this Subscription Agreement was executed by the Investor) the Investor was outside the United States.

 

(m)         If the Investor is or will be, or is or will be acting (directly or indirectly) on behalf of, a “Benefit Plan Investor” (defined below) which is subject to Title I of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Code, or a benefit plan that is subject to any provisions of any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Other Plan Laws”) (collectively, with Benefit Plan Investors, each a “Plan”): (1) the Plan has not relied on, and is not relying on, the investment advice of any the Adviser or any of its employees, representatives or affiliates with respect to the Plan’s investment in the Company and the decision to invest in the Company was made by a fiduciary (within the meaning of Section 3(21) of ERISA and the regulations thereunder, or as defined under applicable Other Plan Laws) (a “Fiduciary”) of the Plan which is unrelated to the Adviser or any of its employees, representatives or affiliates and which is duly authorized to make such an investment decision on behalf of the Plan (the “Plan Fiduciary”); (2) the Plan Fiduciary (i) has taken into consideration its fiduciary duties under ERISA or any applicable Other Plan Law, including the diversification requirements of Section 404(a)(1)(C) of ERISA (if applicable), in authorizing the Plan’s investment in the Company, and has concluded that such investment is prudent, (ii) is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies, within the meaning of 29 C.F.R. § 2510.3 21(c)(1), and (iii) is responsible for exercising independent judgment in evaluating the investment in the Company; (3) the Plan’s investment in the Company and the purchase of Shares contemplated hereby is in accordance with the terms of the Plan’s governing instruments and complies with all applicable requirements of ERISA, the Code and all applicable Other Plan Laws and does not constitute a non-exempt prohibited transaction under ERISA or Section 4975 of the Code or a similar violation under any applicable Other Plan Laws; and (4) the Plan Fiduciary acknowledges and agrees that (i) neither the Adviser nor any of its employees, representatives or affiliates has acted as a fiduciary with respect to the Plan, (ii) neither the Adviser nor any of its employees, representatives or affiliates will be a fiduciary with respect to the Plan as a result of the Plan’s investment in the Company, pursuant to the provisions of ERISA or any applicable Other Plan Laws, or otherwise, and (iii) the Plan Fiduciary has not relied on, and is not relying on, the investment advice of any such person with respect to the Plan’s investment in the Company. “Benefit Plan Investor” includes (i) an employee benefit plan (within the meaning of Section 3(3) of ERISA), whether or not such plan is subject to Title I of ERISA, (ii) a plan, individual retirement account or other arrangement that is described in Section 4975 of the Code, whether or not such plan, individual retirement account or other arrangement is subject to Section 4975 of the Code, (iii) an insurance company using general account assets, if such general account assets are deemed to include the assets of any of the foregoing types of plans, accounts or arrangements for purposes of Title I of ERISA or Section 4975 of the Code under Section 401(c)(1)(A) of ERISA or the regulations promulgated thereunder and (iv) an entity which is deemed to hold the assets of any of the foregoing types of plans, accounts or arrangements, pursuant to ERISA or otherwise.

 

 

Copy No.:

For the Exclusive Use of:

 

(n)          The Investor agrees to notify the Company in writing in the event (i) the Investor either becomes or ceases to be Benefit Plan Investor or other Plan, (ii) the Investor reasonably expects that the Investor will become or cease to be a Benefit Plan Investor, or (iii) if the Investor is an entity that is deemed to hold the assets of any of Plan pursuant to ERISA or any Other Plan Law, the percentage of such Investor’s assets attributable to Plans either increases or decreases. The Investor also agrees to, within 15 business days of the receipt of a written request from the Company, provide a written update to the Company with regard to any of the foregoing. If the Company, in its sole discretion, determines that so doing would be useful in ensuring that equity participation in the Company is not significant within the meaning of 29 CFR 2510.3-101(f), the Company may require any Benefit Plan Investor to transfer some or all of its common stock for fair market value (as determined by the Company in its sole discretion) to an Investor other than a Benefit Plan Investor (whether an existing Investor or a new Investor), redeem Shares of the Benefit Plan Investors common stock or take any other action that it deems, in its sole discretion, to be appropriate. The Investor shall have no claim against the Company, the Administrator, the Manager or any of their respective affiliates for any form of damages or liability as a result of any such transfer or other action taken pursuant to the foregoing sentence.

 

(o)          If the investment in the Shares is being made on behalf of an employee benefit plan maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens (as described in Section 4(b)(4) of ERISA), (i) there is no provision in the instruments governing such plan or any federal, state or local or foreign law, rule, regulation or constitutional provision applicable to the plan that could in any respect affect the operation of the Company, including operations of the Adviser as contemplated by the Advisory Agreement, or prohibit any action contemplated by the Operative Documents and related disclosure of the Company, including, without limitation, the investments which may be made pursuant to the Company’s investment strategies, the concentration of investments for the Company and the payment by the plan of incentive or other fees, and (ii) the plan’s investment in the Company will not conflict with or violate the instruments governing such plan or any federal, state or local or foreign law, rule, regulation or constitutional provision applicable to the plan.

 

(p)          [Reserved].

 

(q)          

 

 

Copy No.:

For the Exclusive Use of:

 

(i)          Neither the Investor, nor any of its affiliates or beneficial owners, (A) appears on the Specially Designated Nationals and Blocked Persons List of the OFAC, nor are they otherwise a party with which any entity is prohibited to deal under the laws of the United States, or (B) is a person identified as a terrorist organization on any other relevant lists maintained by governmental authorities. The Investor further represents and warrants that the monies used to fund the investment in the Shares are not derived from, invested for the benefit of, or related in any way to, the governments of, or persons within, any country (1) under a U.S. embargo enforced by OFAC, (2) that has been designated as a “non-cooperative country or territory” by the Financial Action Task Force on Money Laundering or (3) that has been designated by the U.S. Secretary of the Treasury as a “primary money laundering concern.” The Investor further represents and warrants that the Investor: (I) has conducted thorough due diligence with respect to all of its beneficial owners, (II) has established the identities of all beneficial owners and the source of each of the beneficial owner’s funds and (III) will retain evidence of any such identities, any such source of funds and any such due diligence. Pursuant to anti-money laundering laws and regulations, the Company may be required to collect documentation verifying the Investor’s identity and the source of funds used to acquire an Interest before, and from time to time after, acceptance by the Company of this Subscription Agreement. The Investor further represents and warrants that the Investor does not know or have any reason to suspect that (x) the monies used to fund the Investor’s investment in the Shares have been or will be derived from or related to any illegal activities, including, but not limited to, money laundering activities, and (y) the proceeds from the Investor’s investment in the Shares will be used to finance any illegal activities.

 

(ii)         The Investor will provide to the Company at any time such information as the Company determines to be necessary or appropriate (A) to comply with the anti-money laundering laws, rules and regulations of any applicable jurisdiction and (B) to respond to requests for information concerning the identity of the Investor from any governmental authority, self-regulatory organization or financial institution in connection with its anti-money laundering compliance procedures, or to update such information.

 

(iii)        To comply with applicable U.S. anti-money laundering laws and regulations, all payments and contributions by the Investor to the Company and all payments and distributions to the Investor from the Company will only be made in the Investor’s name and to and from a bank account of a bank based or incorporated in or formed under the laws of the United States or that is regulated in and either based or incorporated in or formed under the laws of the United States and that is not a “foreign shell bank” within the meaning of the U.S. Bank Secrecy Act (31 U.S.C. § 5311 et seq.), as amended, and the regulations promulgated thereunder by the U.S. Department of the Treasury, as such regulations may be amended from time to time.

 

(iv)        The representations and warranties set forth in this Section 8(q) shall be deemed repeated and reaffirmed by the Investor to the Company as of each date that the Investor receives a distribution from the Company. If at any time during the term of the Company, the representations and warranties set forth in this Section 8(q) cease to be true, the Investor shall promptly so notify the Company in writing.

 

(v)         The Investor understands and agrees that the Company may not accept any amounts from a prospective Investor if such prospective Investor cannot make the representations set forth in this Section 8(q).

 

(r)          In the event that the Investor is, receives deposits from, makes payments to or conducts transactions relating to, a non-U.S. banking institution (a “Non-U.S. Bank”) in connection with the Investor’s investment in Shares, such Non-U.S. Bank: (1) has a fixed address, other than an electronic address or a post office box, in a country in which it is authorized to conduct banking activities, (2) employs one or more individuals on a full-time basis, (3) maintains operating records related to its banking activities, (4) is subject to inspection by the banking authority that licensed it to conduct banking activities and (5) does not provide banking services to any other Non-U.S. Bank that does not have a physical presence in any country and that is not a registered affiliate. The Investor agrees and acknowledges that, among other remedial measures, (A) in order to comply with governmental regulations and/or if the Company determines in its sole discretion that such action is in the best interests of the Company, the Company may “freeze the account” of the Investor, either by prohibiting additional investments by the Investor, segregating assets of the Investor and/or suspending other rights the Investor may have under the Operative Documents and (B) the Company may be required to report such action or confidential information relating to the Investor (including without limitation, disclosing the Investor’s identity) to regulatory authorities.

 

 

Copy No.:

For the Exclusive Use of:

 

(s)          The Investor acknowledges that, in order to comply with the provisions of the U.S. Foreign Account Tax Compliance Act (“FATCA”) and avoid the imposition of U.S. federal withholding tax, the Company may, from time to time, require further information and/or documentation from the Investor and, if and to the extent required under FATCA, the Investor’s direct and indirect beneficial owners (if any), relating to or establishing any such owner’s identity, residence (or jurisdiction of formation), income tax status, and other required information and may provide or disclose such information and documentation to the U.S. Internal Revenue Service. The Investor agrees that it shall provide such information and documentation concerning itself and its beneficial owners, if any, as and when requested by the Company sufficient for the Company to comply with its obligations under FATCA. The Investor acknowledges that, if the Investor does not provide the requested information and documentation, the Company may, at its sole option and in addition to all other remedies available at law or in equity, prohibit additional investments, decline or delay any redemption requests by the Investor and/or deduct from such Investor’s account and retain amounts sufficient to indemnify and hold harmless the Company from any and all withholding taxes, interest, penalties and other losses or liabilities suffered by the Company on account of the Investor’s not providing all requested information and documentation in a timely manner. The Investor shall have no claim against the Company, the Administrator, the Adviser or any of their respective affiliates for any form of damages or liability as a result of any of the aforementioned actions.

 

(t)          The Investor acknowledges that the Company has entered into, and intends to enter into, one or more revolving credit facilities with one or more syndicates of banks or to incur indebtedness in lieu of or in advance of capital contributions. In connection therewith, each Investor hereby agrees to cooperate with the Company and provide financial information and other documentation reasonably and customarily required to obtain such facilities.

 

(u)          None of the information concerning the Investor nor any statement, certification, representation or warranty made by the Investor in this Subscription Agreement or in any document required to be provided under this Subscription Agreement (including, without limitation, the Investor Questionnaire and any forms W-9 or W-8 (W-8BEN, W-8BEN-E, W-8IMY, W-8ECI or W-8EXP)), as applicable, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein or herein not misleading.

 

(v)         The Investor agrees that the foregoing certifications, representations, warranties, covenants and agreements shall survive the acceptance of this Subscription Agreement and the dissolution of the Company, without limitation as to time. Without limiting the foregoing, the Investor agrees to give the Company prompt written notice in the event that any statement, certification, representation or warranty of the Investor contained in this Section 8 or any information provided by the Investor herein or in any document required to be provided under this Subscription Agreement (including, without limitation, the Investor Questionnaire and any forms W-9 or W-8 (W-8BEN, W-8BEN-E, W-8IMY, W-8ECI or W-8EXP)), as applicable, ceases to be true at any time following the date hereof.

 

(w)         The Investor agrees to provide such information and execute and deliver such documents as the Company may reasonably request to verify the accuracy of the Investor’s representations and warranties herein or to comply with any law or regulation to which the Company, the Adviser, the Administrator or a portfolio company may be subject.

 

 

Copy No.:

For the Exclusive Use of:

 

(x)          The execution, delivery and performance of this Subscription Agreement by the Investor do not and will not result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, to which the Investor is a party or by which it is bound or to which any of its properties are subject, or require any authorization or approval under or pursuant to any of the foregoing, violate the organizational documents of the Investor, or violate any statute, regulation, law, order, writ, injunction or decree to which the Investor is subject. The Investor has obtained all authorizations, consents, approvals and clearances of all courts, governmental agencies and authorities and such other persons, if any, required to permit the Investor to enter into this Subscription Agreement and to consummate the transactions contemplated hereby and thereby.

 

9.           Representations of the Company. The Company represents as follows:

 

(a)          The Company is empowered, authorized and qualified to enter into this Subscription Agreement and the person or persons signing this Subscription Agreement on behalf of the Company has been duly authorized by the Company to do so.

 

(b)          The execution and delivery of this Subscription Agreement by the Company and the performance of its duties and obligations hereunder do not and will not result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, to which the Company is a party or by which it is bound or to which any of its properties are subject, or require any authorization or approval under or pursuant to any of the foregoing, violate the organizational documents of the Company, or violate in any material respect any statute, regulation, law, order, writ, injunction or decree to which the Company is subject.

 

(c)          The Company is not in default (nor has any event occurred which with notice, lapse of time, or both, would constitute a default) in the performance of any obligation, agreement or condition contained in this Subscription Agreement, the Advisory Agreement and the Administration Agreement, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness or any lease or other agreement or understanding, or any license, permit, franchise or certificate, to which it is a party or by which it is bound or to which its properties are subject, nor is it in violation of any statute, regulation, law, order, writ, injunction, judgment or decree to which it is subject, which default or violation would materially adversely affect the business or financial condition of the Company or impair the Company’s ability to carry out its obligations under this Subscription Agreement or the Advisory Agreement.

 

(d)          There is no litigation, investigation or other proceeding pending or, to the knowledge of the Company, threatened against the Company that, if adversely determined, would materially adversely affect the business or financial condition of the Company or the ability of the Company to perform its obligations under this Subscription Agreement, the Advisory Agreement and the Administration Agreement.

 

(e)          [Reserved].

 

10.         [Reserved].

 

 

Copy No.:

For the Exclusive Use of:

 

11.         Public Pension Fund Reform Code of Conduct. If the Investor is a retirement plan established or maintained for its employees (current or former) by the Government of the United States, the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing (a “Government Plan”), then:

 

(a)          the Company certifies to such Government Plan that, as of the date hereof, all provisions of the Public Pension Fund Reform Code of Conduct adopted by The Carlyle Group, predecessor to The Carlyle Group L.P. (“Carlyle”), on May 14, 2009 (as such Code may be amended, modified or supplemented from time to time, the “Code of Conduct”) are in full force and effect and that Carlyle, after making such inquiries as are required by the Code of Conduct, is in compliance therewith and will continue to remain in compliance with Paragraph 3 thereof throughout the term of the Company; provided that, notwithstanding the foregoing, the Government Plan acknowledges that Paragraphs 19 through 23 of the Code of Conduct are inapplicable to the Company and that conflicts of interest matters are addressed in the Memorandum, as contemplated by Paragraph 24 of the Code of Conduct;

 

(b)          the Government Plan acknowledges and agrees pursuant to Paragraph 15 of the Code of Conduct that confidential or sensitive information about the Government Plan may be disclosed in connection with the activities of the Company;

 

(c)          the Government Plan acknowledges that (i) the disclosures made by Carlyle pursuant to the Code of Conduct are made available for review on the Company’s website; (ii) such disclosures will be updated regularly and will remain available for review on such website; and (iii) a copy of the Code of Conduct is available upon request;

 

(d)          notwithstanding Section 18 of the Code of Conduct, neither the Company nor Carlyle nor their respective affiliates shall be subject to such Government Plan’s regulations and internal rules and policies that are not otherwise applicable to such person; and

 

(e)          in the event that there has been a finding by any court or governmental body of competent jurisdiction in a final judgment or an admission by Carlyle in a settlement of any lawsuit (provided, for the avoidance of doubt, that the settlement of a lawsuit shall not in and of itself be deemed an admission) that Carlyle has materially violated the Code of Conduct with respect to such Government Plan and such material violation has not been cured (to the extent curable) within 60 calendar days after such finding or admission, then such Government Plan shall be excused from its obligation to purchase additional Shares from the Company in connection with any Funding Notice, provided that, within seven calendar days after such Government Plan has received such Funding Notice, such Government Plan shall have notified the Company of its intention to exercise such excuse right.

 

12.         Further Advice and Assurances. All information which the Investor has provided to the Company, including the information in the Investor Questionnaire, is true, correct and complete as of the date hereof, and the Investor agrees to notify the Company immediately if any representation, warranty or information contained in this Subscription Agreement or any of the information in the Investor Questionnaire, becomes untrue at any time. The Investor agrees to provide such information and execute and deliver such documents with respect to itself and its direct and indirect beneficial owners as the Company may from time to time reasonably request to verify the accuracy of the Investor’s representations and warranties herein, establish the identity of the Investor and the direct and indirect participants in its investment in Shares, to the extent applicable, to effect any transfer and admission and/or to comply with any law, rule or regulation to which the Company may be subject, including, without limitation, compliance with anti-money laundering laws and regulations or for any other reasonable purpose.

 

 

Copy No.:

For the Exclusive Use of:

 

13.         Power of Attorney.

 

(a)          The Investor, by its execution hereof, hereby irrevocably makes, constitutes and appoints the Company 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:

 

(i)          any and all filings required to be made by the Investor under the Exchange Act with respect to any of the Company’s securities which may be deemed to be beneficially owned by the Investor under the Exchange Act;

 

(ii)         all certificates and other instruments deemed advisable by the Company in order for the Company to enter into any borrowing or pledging arrangement;

 

(iii)        all certificates and other instruments deemed advisable by the Company to comply with the provisions of this Subscription Agreement and applicable law or to permit the Company to become or to continue as a business development corporation; and

 

(iv)        all other instruments or papers not inconsistent with the terms of this Subscription Agreement which may be required by law to be filed on behalf of the Company.

 

(b)          With respect to the Investor and the Company, the foregoing power of attorney:

 

(i)          is coupled with an interest and shall be irrevocable;

 

(ii)         may be exercised by the Company either by signing separately as attorney-in-fact for the Investor or, after listing all of the Investors executing an instrument, by a single signature of the Company acting as attorney-in-fact for all of them;

 

(iii)        shall survive the assignment by the Investor of the whole or any fraction of its Shares; and

 

(iv)        may not be used by the Company in any manner that is inconsistent with the terms of this Subscription Agreement and any other written agreement between the Company and the Investor.

 

14.         Indemnity. The Investor understands that the information provided herein (including the Investor Questionnaire) will be relied upon by the Company for the purpose of determining the eligibility of the Investor to purchase Shares in the Company. The Investor agrees to provide, if requested, any additional information that may reasonably be required to determine the eligibility of the Investor to purchase Shares in the Company. To the fullest extent permitted under applicable law, the Investor agrees to indemnify and hold harmless the Company, the Adviser, the Administrator, and their affiliates and each partner, member, officer, director, employee, and agent thereof, from and against any loss, damage or liability due to or arising out of a breach of any representation, warranty or agreement of the Investor contained in this Subscription Agreement (including the Investor Questionnaire) or in any other document provided by the Investor to the Company or in any agreement executed by the Investor in connection with the Investor’s investment in Shares.

 

 

Copy No.:

For the Exclusive Use of:

 

15.         Miscellaneous. This Subscription Agreement is not transferable or assignable by the Investor. Any purported assignment of this Subscription Agreement will be null and void. The representations and warranties made by the Investor in this Subscription Agreement (including the Investor Questionnaire) shall survive the closing of the transactions contemplated hereby and any investigation made by the Company. The Investor Questionnaire, including without limitation the representations and warranties contained therein, is an integral part of this Subscription Agreement and shall be deemed incorporated by reference herein. This Subscription Agreement may be executed in one or more counterparts, all of which together shall constitute one instrument. Notwithstanding the place where this Subscription Agreement may be executed by any of the parties hereto, the parties expressly agree that this Subscription Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the choice of law principles thereof. To the fullest extent permitted by law, the sole and exclusive forum for any action, suit or proceeding with respect to this Subscription Agreement shall be a federal or state court located in the state of Delaware, provided that to the extent the appropriate court located in the state of Delaware determines that it does not have jurisdiction over such action, then the sole and exclusive forum shall be any federal or state court located in the state of Maryland, and each party hereto, to the fullest extent permitted by law, hereby irrevocably waives any objection that it may have, whether now or in the future, to the laying of venue in, or to the jurisdiction of, any and each of such courts for the purposes of any such action, suit or proceeding and further waives any claim that any such action, suit or proceeding has been brought in an inconvenient forum, and each party hereto hereby submits to such jurisdiction and consents to process being served in any such action, suit or proceeding, without limitation, by United States mail addressed to the party at the parties address specified herein or in the Investor Questionnaire. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, TO THE FULLEST EXTENT PERMITTED BY LAW.

 

16.         Confidentiality. The Investor acknowledges that the Memorandum and other information relating to the Company has been submitted to the Investor on a confidential basis for use solely in connection with the Investor’s consideration of the purchase of Shares. The Investor agrees that, without the prior written consent of the Company (which consent may be withheld at the sole discretion of the Company), the Investor shall not (a) reproduce the Memorandum or any other information relating to the Company (including, without limitation any future information provided to the Investor as to the Company’s estimated net asset value or net asset value per share, asset levels, financial performance or other financial or operating results prior to the filing of such information with the SEC), in whole or in part, or (b) disclose the Memorandum or any other such information relating to the Company to any person who is not an officer or employee of the Investor who is involved in its investments, or partner (general or limited) or affiliate of the Investor (it being understood and agreed that if the Investor is a pooled investment fund, it shall only be permitted to disclose the Memorandum or other information related to the Company if the Investor has required its investors to enter into confidentiality undertakings no less onerous than the provisions of this Section 16), except to the extent (1) such information is in the public domain (other than as a result of any action or omission of Investor or any person to whom the Investor has disclosed such information) or (2) such information is required by applicable law or regulation to be disclosed. The Investor further agrees to return the Memorandum and any other information relating to the Company if no purchase of Shares is made or upon the Company’s request therefore. The Investor acknowledges and agrees that monetary damages would not be sufficient remedy for any breach of this section by it, and that in addition to any other remedies available to the Company in respect of any such breach, the Company shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach.

 

 

Copy No.:

For the Exclusive Use of:

 

17.         Notice. All notices, consents, requests, demands, offers, reports, and other communications (collectively, “Notices”) required or permitted to be given pursuant to this Subscription Agreement shall be in writing and shall be given, made or delivered by personal hand-delivery, by facsimile transmission, by electronic mail, or by air courier guaranteeing overnight delivery, addressed as set forth below. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by facsimile transmission or by electronic mail; provided, that if such service or transmission is not on a business day or is after normal business hours, then such notice shall be deemed given on the next business day. Notice otherwise sent as provided herein shall be deemed given on the next business day following timely delivery of such Notice to an air courier guaranteeing overnight delivery.

 

If to the Company, to:

 

Carlyle Credit Solutions, Inc.

One Vanderbilt Avenue, Suite 3400

New York, NY 10017

Attention:                  [ ]

E-mail:                      [ ]@carlyle.com

 

and, if to the Investor, to the address of CDL Tender Fund 2022-1, L.P. set forth in the Investor Questionnaire. The Company or the Investor may change its address by giving notices to the other in the manner described herein.

 

18.         Necessary Acts, Further Assurances. The parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Subscription Agreement or to show the ability to carry out the intent and purposes of this Subscription Agreement.

 

19.         No Joint Liability Among the Company, the Adviser, and the Administrator. The Company shall not be liable for the fulfillment of any obligation or the accuracy of any representation of the Adviser or the Administrator under or in connection with this Subscription Agreement. The Adviser shall not be liable for the fulfillment of any obligation or the accuracy of any representation of the Company or the Administrator under or in connection with this Subscription Agreement. The Administrator shall not be liable for the fulfillment of any obligation or the accuracy of any representation of the Company or the Adviser under or in connection with this Subscription Agreement. There shall be no joint and several liability of the Company, the Adviser, and the Administrator for any obligation under or in connection with this Subscription Agreement.

 

20.         Independent Nature of Investors’ Obligations and Rights; Third-Party Beneficiaries. The obligations of the Investor hereunder are several and not joint with the obligations of any Other Investor. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by the Investor pursuant hereto or thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors are in any way acting in concert with respect to such obligations or the transactions contemplated by this Subscription Agreement. This Subscription Agreement is not intended to confer upon any person, other than the parties hereto, except as provided in Section 14, any rights or remedies hereunder.

 

[Remainder of page intentionally left blank] 

 

 

IN WITNESS WHEREOF, the undersigned has executed this Subscription Agreement on the date set forth below.

 

Date:      _____, 2022

 

Amount:   CDL Tender Fund 2022-1, L.P. (the “Investor”) agrees to purchase from the Company’s stockholders all Shares validly tendered and not validly withdrawn prior to the expiration date of the Special Tender Offer, the details and specific terms of which shall be set forth in the Offer to Purchase, which will be furnished to the Company’s stockholders and will be annexed to the Investor’s Schedule TO to be filed with the SEC in connection with the Special Tender Offer, up to a maximum aggregate amount of $100,000,000 of Shares, at a purchase price equal to $20.13 per Share, payable in accordance with the terms set forth in the Offer to Purchase and the related letter of transmittal relating to the Special Tender Offer.

 

	INDIVIDUAL, JOINT IN TENANCY, INDIVIDUAL IRA INVESTOR:
		(Print Name)
		(Signature)
	PARTNERSHIP, CORPORATION, LIMITED LIABILITY COMPANY, TRUST, CUSTODIAL ACCOUNT, OTHER INVESTOR:

 

	CDL Tender Fund 2022-1, L.P.   By: CDL Tender Fund 2022-1 GP, L.L.C.
	By:
		(Signature)
		(Print Name and Title)

 

Agreed and accepted as of the _____ day of __________, 2022:

 

CARLYLE CREDIT SOLUTIONS, INC.
By:
Name:
Title:

  

 

INVESTOR QUESTIONNAIRE

 

Note: Questions regarding this questionnaire should be directed to [email protected].

 

A.

General Information

 

1.	Print Full Name of Investor:  Individual, Individual IRA, Joint in Tenancy:
	First	Middle	Last
	Entity Name
	Entity: To assist the Company in preparing its tax filings, please check the category into which you fall:

 

	Partnership	☐
	C-Corporation	☐
	S-Corporation	☐
	Estate	☐
	Grantor Trust	☐
	Trust-EIN (a trust with an EIN in this format: 12-3456789)	☐
	Trust-SSN (a trust with an EIN in this format: 123-45-6789)	☐
	IRA-EIN	☐
	IRA-SSN	☐
	Exempt Organization	☐
	LLP	☐
	LLC	☐
	Nominee-EIN	☐
	Nominee-SSN	☐
	Other	☐

 

2.	U.S. Taxpayer Identification or Social Security Number:
3.	Date of Birth:

 

 

Copy No.:

For the Exclusive Use of:

 

4.	Primary Contact Person for This Account and for General Notices:

 

Name:

Address:

Telephone:

Fax:

E-mail:

 

5.	Contact Person(s) For This Account for Financial Information and Reporting (including quarterly and annual financial reports and capital account statements):

 

Name:

Address:

Telephone:

Fax:

E-mail:

 

6.	Contact Person(s) For This Account for Capital Call and Distribution Notices:

 

Name:

Address:

Telephone:

Fax:

E-mail:

 

7.	Contact Person For This Account for Tax Matters (including Form 1099 distribution) (please limit to one contact):

 

Name:

Address:

Telephone:

Fax:

E-mail:

 

8.	For distributions of cash, please wire funds to the following bank account:

 

Bank Name:

Bank Location:

Account Number:

Account Name:

Bank’s Routing No.:

For further credit to: (if any)

Reference:

SWIFT Code:

 

9.	For distributions in-kind, please credit securities to my brokerage account at the following firm:

 

Firm Name:

Address:

Account Name:

Account Number:

DTC Number:

 

 

Copy No.:

For the Exclusive Use of:

 

10.	Permanent Address of Investor (if different from address for Notices above):

 

B.	Accredited Investor Status

 

The Investor represents and warrants that the Investor is an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), and has checked the box or boxes below which are next to the category or categories under which the Investor qualifies as an accredited investor:

 

FOR INDIVIDUALS, INDIVIDUAL IRAS, JOINT IN TENANCY:

 

☐	(A)	A natural person with individual net worth (or joint net worth with spouse or spousal equivalent) in excess of $1 million. For purposes of this item, “net worth” means the excess of total assets at fair market value, including automobiles and other personal property and property owned by a spouse, but excluding the value of the primary residence of such natural person, over total liabilities. For this purpose, the amount of any mortgage or other indebtedness secured by an Investor’s primary residence should not be included as a “liability”, except to the extent the fair market value of the residence is less than the amount of such mortgage or other indebtedness.
☐	(B)	A natural person with individual income (without including any income of the Investor’s spouse or spousal equivalent) in excess of $200,000, or joint income with spouse or spousal equivalent in excess of $300,000, in each of the two most recent years and who reasonably expects to reach the same income level in the current year.
☐	(C)	A natural person who holds at least one of the following licenses in good standing: a Series 7, Series 65 or Series 82 license.

 

FOR ENTITIES:

 

☐	(A)	A bank, as defined in Section 3(a)(2) of the Securities Act, whether acting in regard to this offering in its individual or a fiduciary capacity.
☐	(B)	A savings and loan association or other institution, as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in regard to this offering in its individual or a fiduciary capacity.
☐	(C)	A broker or dealer registered pursuant to Section 15 of the Exchange Act.
☐	(D)	An insurance company, as defined in Section 2(a)(13) of the Securities Act.
☐	(E)	An investment company registered under the Investment Company Act.
☐	(F)	A business development company, as defined in Section 2(a)(48) of the Investment Company Act.

 

 

Copy No.:

For the Exclusive Use of:

 

☐	(G)	A private business development company, as defined in Section 202(a)(22) of the Advisers Act.
☐	(H)	An investment adviser registered pursuant to Section 203 of the Advisers Act or registered pursuant to the laws of a state or relying on the exemption from registering with the SEC under section 203(l) or (m) of the Advisers Act.
☐	(I)	A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958, as amended.
☐	(J)	A Rural Business Investment Company as defined in Section 384A of the Consolidated Farm and Rural Development Act.
☐	(K)	A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000.
☐	(L)	An employee benefit plan within the meaning of ERISA, if the investment decision regarding this offering was made by a plan fiduciary (as such term is defined in Section 3(21) of ERISA) which is either a bank, savings and loan association, insurance company or investment adviser duly registered under the Advisers Act.
☐	(M)	An employee benefit plan within the meaning of ERISA with total assets in excess of $5,000,000, whether or not the investment decision regarding this offering was made by a bank, insurance company or registered investment adviser.
☐	(N)	An employee benefit plan within the meaning of ERISA which is a self-directed plan with investment decisions made solely by persons described by one or more of the categories set forth in this Section B.
☐	(O)	Either (A) a corporation, (B) a Massachusetts or similar business trust, (C) a partnership, (D) a limited liability company, or (E) an organization described in Section 501(c)(3) of the Code, in any case not formed for the specific purpose of acquiring the Shares and having total assets in excess of $5,000,000.
☐	(P)	A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring Shares whose purchase is directed by a person who has, alone or together with his or her purchaser representative (as defined in Regulation D under the Securities Act), such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of this investment.
☐	(Q)	A trust pursuant to which the grantor(s) of the trust may revoke the trust at any time and regain title to the trust assets and has (have) retained sole or shared investment control over the assets of the trust, and the (each) grantor is described by one or more of the categories set forth in this Section B in which case the Investor has so notified the Company in writing that it is relying on this clause (Q), and agrees to provide the Company with information requested by it respecting each grantor of the trust).

 

 

Copy No.:

For the Exclusive Use of:

 

☐	(R)	A partnership, corporation or other entity (other than a trust) in which all of the equity holders are persons or entities described by one or more of the categories set forth in this Section B, in which case the Investor has so notified the Company in writing that it is relying on this clause (R), and agrees to provide the Company with information requested by it respecting the Investor’s equity holders.)1
☐	(S)	A “family office,” as defined in Rule 202(a)(11)(G)-1 under the Advisers Act with assets under management in excess of $5,000,000, that is not formed for the specific purpose of acquiring the Shares, and whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment.
☐	(T)	A “family client,” as defined in Rule 202(a)(11)(G)-1 under the Advisers Act, of a family office defined in clause (S) above (and whose prospective investment in the Shares is directed by such family office).
☐	(U)	An entity, not formed for the specific purpose of acquiring the securities offered, which owns in excess of $5 million in “investments” (as defined in Rule 2a51-1(b) under the Investment Company Act).

 

C.

Supplemental Data for Individuals, Individual IRAs, Joint in Tenancy

 

Please indicate whether you are investing the assets of any retirement plan, employee benefit plan or other similar agreement (such as an IRA or “Keogh” plan).

 

☐ Yes   ☐ No

 

If the above question was answered “Yes,” please indicate the type of retirement plan, employee benefit plan or other similar agreement below:

 

 

¹ In reviewing equity ownership, it is permissible to look through various forms of equity ownership to natural persons.

 

 

 

D.

Supplemental Data for Entities

 

	If the Investor is not a natural person, the Investor must furnish the following supplemental data (Natural persons may skip this Section of the Investor Questionnaire):
	Legal form of entity (trust, corporation, partnership, limited liability company, etc.):
	Jurisdiction of organization and location of domicile:
	Beneficial Ownership:

 

	Full Name	Full Legal Address	Designation*

 

* Please designate officer, director, general partner, managing director, member, trustee, settlor or beneficial owner

 

2.	This question is for Non-U.S. Investors only (including Investors acting for beneficial owners that are Non-U.S. persons). If the Investor is a U.S. Investor, please skip this question 2.
2.a.	Does the Investor qualify as an integral part or a controlled entity of a foreign government for purposes of Section 892 of the Code (for example, certain sovereign wealth funds)?
	☐  Yes   ☐ No
	If “Yes,” please furnish an executed copy of form W-8EXP.
2b.	Does the Investor qualify as a pension fund entitled to an exemption from withholding tax on dividends under an applicable tax treaty?
	☐  Yes   ☐ No
	If “Yes,” please indicate the relevant treaty below and on an executed copy of form W 8BEN E.
	Applicable Treaty:
2c.	Does the Investor qualify for a reduced rate of withholding tax on dividends under any applicable tax treaty?
	☐  Yes   ☐ No
	If “Yes,” please indicate the relevant treaty below and on an executed copy of form W 8BEN E.
	Applicable Treaty:

 

 

Copy No.:

For the Exclusive Use of:

 

3a.	Please indicate whether or not the Investor is or will be, or is or will be acting (directly or indirectly) on behalf of, (i) an employee benefit plan (within the meaning of Section 3(3) of ERISA), whether or not such plan is subject to Title I of ERISA, (ii) a plan, individual retirement account or other arrangement that is described in Section 4975 of the Code, whether or not such plan, account or arrangement is subject to Section 4975 of the Code, (iii) an insurance company using general account assets, if such general account assets are deemed to include the assets of any of the foregoing types of plans, accounts or arrangements for purposes of Title I of ERISA or Section 4975 of the Code under Section 401(c)(1)(A) of ERISA or the regulations promulgated thereunder, or (iv) an entity which is deemed to hold the assets of any of the foregoing types of plans, accounts or arrangements (each of the foregoing described in clauses (i), (ii), (iii) and (iv) being referred to as a “Plan Investor”).
	☐  Yes   ☐ No
3b.	If the Investor is or will be, or is or will be acting (directly or indirectly) on behalf of, such a Plan Investor, please indicate whether or not the Plan Investor is subject to Title I of ERISA or Section 4975 of the Code.
	☐  Yes   ☐ No
3c.	If the answer to question 3.b. above is “Yes”, please indicate the maximum percentage of the Plan Investor’s assets that may constitute the assets of “benefit plan investors” within the meaning of Section 3(42) of ERISA as modified by 29 CFR 2510.3-101(f):
	Percentage
3d.	If the Investor is investing the assets of an insurance company general account, please indicate the maximum percentage of the insurance company general account’s assets that may constitute the assets of “benefit plan investors” within the meaning of Section 401(c)(1)(A) of ERISA or the regulations promulgated thereunder:
	Percentage
3e.	If the Plan Investor is not subject to Title I of ERISA or Section 4975 of the Code, please indicate whether or not such Plan Investor is subject to any other federal, state, local, non-U.S. or other laws or regulations that could cause the underlying assets of the Company to be treated as assets of the Plan Investor by virtue of its investment in the Company and thereby subject the Company and the Adviser (or other persons responsible for the investment and operation of the Company’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.
	☐  Yes   ☐ No

 

 

Copy No.:

For the Exclusive Use of:

 

4a.	Is the Investor a private investment company which is not registered under the Investment Company Act in reliance on:
	Section 3(c)(1) thereof?	☐  Yes   ☐ No
	Section 3(c)(7) thereof?	☐  Yes   ☐ No
4b.	Does the amount of the Investor’s subscription for Shares in the Company exceed 40% of the total assets (on a consolidated basis with its subsidiaries) of the Investor?
	☐  Yes   ☐ No

 

4c.	If either part of question 4.a. was answered “Yes,” please indicate whether or not the Investor was formed on or before April 30, 1996.
	☐  Yes   ☐ No
5.	Is the Investor an “investment company” registered or required to be registered under the Investment Company Act or a “business development company,” as defined in Section 202(a)(22) of the Advisers Act?
	☐  Yes   ☐ No
	If the box above was checked “Yes,” please contact the Company for additional information that will be required.
6.	Is the Investor a “BHC Investor”2?
	☐  Yes   ☐ No
	If the box above was checked “Yes,” please contact the Company for additional information that will be required.
7.	If the Investor’s tax year ends on a date other than December 31, please indicate such date below:
8.	Is the Investor subject to the U.S. Freedom of Information Act, 5 U.S.C. § 552, (“FOIA”), any state public records access laws, any state or other jurisdiction’s laws similar in intent or effect to FOIA, or any other similar statutory or regulatory requirement that might result in the disclosure of confidential information relating to the Company?
	☐  Yes   ☐ No
	If the question above was answered “Yes,” please indicate the relevant laws to which the Investor is subject and provide any additional explanatory information in the space below:

 

² A “BHC Investor” is defined as an Investor that is a bank holding company, as defined in Section 2(a) of the Bank Holding Company Act of 1956, as amended (the “BHC Act”), a non-bank subsidiary (for purposes of the BHC Act) of a bank holding company, a foreign banking organization, as defined in Regulation K of the Board of Governors of the Federal Reserve System (12 C.F.R. § 211.23) or any successor regulation, or a non-bank subsidiary (for purposes of the BHC Act) of a foreign banking organization which subsidiary is engaged, directly or indirectly in business in the United States and which in any case holds Shares for its own account.

 

 

Copy No.:

For the Exclusive Use of:

 

9.	Was the Investor organized for the specific purpose of acquiring Shares?
	☐  Yes   ☐ No
	If the above question was answered “Yes,” please contact the Company for additional information that will be required.

 

E.

Related Parties/Other Beneficial Parties:

 

1.	To the best of the Investor’s knowledge, does the Investor control, or is the Investor controlled by or under common control with, any other investor or prospective investor in the Company?
	☐  Yes   ☐ No
	If the question above was answered “Yes,” please indicate the name of such other investor in the space below:
2.	Will any other person or persons have a beneficial interest in the Shares to be acquired hereunder (other than as a shareholder, partner, policy owner or other beneficial owner of equity interests in the Investor)? (By way of example, and not limitation, “nominee” Investors or Investors who have entered into swap or other synthetic or derivative instruments or arrangements with regard to the Shares to be acquired herein would check “Yes”)
	☐  Yes   ☐ No
	If either question above was answered “Yes,” please contact the Company for additional information that will be required.
3.	Is the Investor, or will the undersigned be, a person or entity that has discretionary authority or control with respect to the assets of the Company or a person who provides investment advice with respect to the assets of the Company or an “affiliate” of such a person?  For purposes of this representation and agreement, an “affiliate” is any person controlling, controlled by or under common control with any such person, including by reason of having the power to exercise a controlling influence over the management or policies of such person
	☐  Yes   ☐ No

  

 

Copy No.:

For the Exclusive Use of:

 

F.

Financing of Acquisition

 

1.	Please indicate whether you are borrowing or are otherwise financing your acquisition of Shares hereunder.
	¨  Yes   ¨ No
	If the above question was answered “Yes,” please indicate the amount financed and what, if any, collateral was given to secure the financing:

  

[Remainder of page intentionally left blank]

 

 

The Investor understands that the foregoing information will be relied upon by the Company for the purpose of determining the eligibility of the Investor to purchase and own Shares in the Company. The Investor agrees to notify the Company immediately if any representation or warranty contained in this Subscription Agreement or any of the information in the Investor Questionnaire becomes untrue at any time. The Investor agrees to provide, if requested, any additional information that may reasonably be required to substantiate the Investor’s status as an accredited investor or to otherwise determine the eligibility of the Investor to purchase Shares in the Company. To the fullest extent permitted by law, the Investor agrees to indemnify and hold harmless the Company, the Adviser, the Administrator and each partner or member thereof, from and against any loss, damage or liability due to or arising out of a breach of any representation, warranty or agreement of the Investor contained herein.

 

	Signatures:
	INDIVIDUAL, JOINT IN TENANCY, INDIVIDUAL IRA INVESTOR:
		(Signature)
		(Print Name)
	PARTNERSHIP, CORPORATION, LIMITED LIABILITY COMPANY, TRUST, CUSTODIAL ACCOUNT, OTHER INVESTOR:

 

	CDL Tender Fund 2022-1, L.P.   By: CDL Tender Fund 2022-1 GP, L.L.C.
	By:
		(Signature)
		(Print Name and Title)

  

 

APPENDIX E

 

[Reserved]

 

 

APPENDIX F

 

TRANSFER RESTRICTIONS

 

No Transfer of all or any fraction of the Investor’s Shares may be made without (i) registration of the Transfer on the Company books and (ii) the prior written consent of the Company. In any event, the consent of the Company may be withheld (x) if the creditworthiness of the proposed transferee, as determined by the Company in its sole discretion, is not sufficient to satisfy all obligations under the Subscription Agreement or (y) unless, in the opinion of counsel (who may be counsel for the Company or the Investor) satisfactory in form and substance to the Company:

 

•

such Transfer would not violate the Securities Act, the Investment Company Act or any state (or other jurisdiction) securities or “Blue Sky” laws applicable to the Company or the Shares to be Transferred; and

 

•

such Transfer would not be a “prohibited transaction” under ERISA or the Code or the regulations promulgated thereunder or cause all or any portion of the assets of the Company to constitute “plan assets” under ERISA, certain Department of Labor regulations or Section 4975 of the Code.

 

The Investor agrees that it will pay all reasonable expenses, including attorneys’ fees, incurred by the Company in connection with any Transfer of all or any fraction of its Shares, prior to the consummation of such Transfer.

 

The Company shall not recognize for any purpose any purported Transfer of all or any fraction of the Shares and shall be entitled to treat the transferor of Shares as the absolute owner thereof in all respects, and shall incur no liability for distributions or dividends made in good faith to it, unless the Company shall have given its prior written consent thereto and there shall have been filed with the Company a dated notice of such Transfer, in form satisfactory to the Company, executed and acknowledged by both the seller, assignor or transferor and the purchaser, assignee or transferee, and such notice (i) contains the acceptance by the purchaser, assignee or transferee of all of the terms and provisions of this Subscription Agreement and its agreement to be bound thereby, and (ii) represents that such Transfer was made in accordance with this Subscription Agreement, the provisions of the Memorandum and all applicable laws and regulations applicable to the transferee and the transferor.

 

 

---

 

Exhibit 107

EX-FILING FEES

Calculation of Filing Fee Tables

 

SCHEDULE TO

(Rule 14d-100)

 

Carlyle Credit Solutions, Inc.

(Name of Subject Company (Issuer))

 

CDL Tender Fund 2022-1, L.P.

CDL Tender Fund 2022-1 GP, L.L.C.

CG Subsidiary Holdings, L.L.C.

Carlyle Global Credit Investment Management L.L.C.

Cliffwater Corporate Lending Fund

Cliffwater LLC

AlpInvest Indigo I CI-A, L.P.

AlpInvest Indigo SCF I CI GP, L.P.

(Name of Filing Persons (Offerors))

 

Table 1 – Transaction Value

 

	Transaction Valuation*			Fee rate			Amount of Filing Fee**
Fees to Be Paid	$	100,000,000			0.00009270		$	9,270
Fees Previously Paid		0						0
Total Transaction Valuation	$	100,000,000
Total Fees Due for Filing							$	9,270
Total Fees Previously Paid								0
Total Fee Offsets								0
Net Fee Due							$	9,270

 

*

This calculation is based on the offer to purchase for cash up to $100,000,000 in aggregate amount of shares of common stock, par value $0.01 per share, of Carlyle Credit Solutions, Inc., a Maryland corporation.

**

The filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Advisory Rate #1 for Fiscal Year 2022, issued August 23, 2021, is calculated by multiplying the Transaction Valuation by 0.00009270.