AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF VIRGIN MOBILE USA, L.P.

Exhibit 10.1

 

AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

OF

VIRGIN MOBILE USA, L.P.

Dated as of August 22, 2008

 

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

Table of Contents

 

 

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AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

OF

VIRGIN MOBILE USA, L.P.

This AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (this “ Agreement ”) of Virgin Mobile USA, L.P. (the “ Partnership ”) is made as of the 22nd day of August, 2008, by and among VMU GP I, LLC, a limited liability company organized under the laws of the State of Delaware, as General Partner (as defined herein) of the Partnership, Bluebottle USA Holdings L.P., a limited partnership formed under the laws of the State of Delaware, as a Limited Partner (as defined herein) of the Partnership, Virgin Mobile USA, Inc., a Delaware corporation, as a Limited Partner of the Partnership (the “ Ultimate Parent ”), Sprint Ventures, Inc., a Delaware corporation, as a Limited Partner of the Partnership, and the other Limited Partners of the Partnership admitted in accordance with this Agreement.

W I T N E S S E T H:

WHEREAS, Virgin Mobile USA, LLC was formed as a Delaware limited liability company on October 4, 2001 (“ VMU LLC ”);

WHEREAS, on October 16, 2007 in connection with the IPO (as defined herein) VMU LLC was converted into the Partnership (the “ Conversion ”) pursuant to the Delaware Limited Liability Company Act, as amended from time to time (the “ LLC Act ”), and the Delaware Revised Uniform Limited Partnership Act (the “ Act ”) by causing the filing in the office of the Secretary of State of the State of Delaware of a Certificate of Conversion to Limited Partnership of VMU LLC to the Partnership (the “ Conversion Certificate ”) and a Certificate of Limited Partnership of the Partnership (the “ Certificate ”);

WHEREAS, on October 16, 2007 the Partners entered into a limited partnership agreement of the Partnership (the “ Original Agreement ”);

WHEREAS, on the date hereof and pursuant to the Transaction Agreement (the “ Transaction Agreement ”), dated as of June 27, 2008, by and among the Partnership, the Ultimate Parent, Corvina Holdings Limited, Helio LLC, SK Telecom USA Holdings, Inc. (“ SK Telecom ”), EarthLink Inc. (“ EarthLink ”) and Helio, Inc., SK Telecom and EarthLink will be issued Common Units (as defined herein) and will each be admitted as Limited Partners of the Partnership;

WHEREAS, in accordance with Section 7.06(a) hereof, the Company desires to create a new series of Units with designations, preferences and other rights, terms and conditions that are substantially similar to the designations, preferences and other rights, terms and conditions of the Series A Convertible Preferred Stock, par value $0.01 per share, issued by the Ultimate Parent on the date hereof (the “ Series A Preferred Stock ”); and

WHEREAS, the parties hereto desire to amend and restate the Original Agreement in accordance with the terms hereof.

NOW, THEREFORE, in consideration of the mutual promises and agreements herein made and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

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

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

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

“ Additional Funds ” has the meaning set forth in Section 5.02(b).

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

“ Assignee ” has the meaning set forth in Section 8.04.

“ Assumed Tax Rate ” means a rate equal to the highest effective marginal combined U.S. federal, state and local income tax rate prescribed for a corporate resident of New York, New York.

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

“ Beneficial Ownership ” means such term as set forth in Rule 13d-3 under the Exchange Act.

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

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

“ Carrying Value ” means, with respect to any asset of the Partnership, such asset’s adjusted basis for U.S. federal income tax purposes, except that the Carrying Values of all assets of the Partnership shall be adjusted to equal their respective fair market values as

 

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determined by the General Partner, in accordance with the rules set forth in Regulations Section 1.704-1(b)(2)(iv)(f), except as otherwise provided herein, as of: (i) immediately prior to the acquisition of any additional Units by any new or existing Partner in exchange for more than a de minimis Capital Contribution, other than an acquisition of Units through the exercise of a noncompensatory option (as defined in Proposed Regulation Section 1.721-2(d)); (ii) immediately after the acquisition of Units through the exercise of a noncompensatory option (as defined in Proposed Regulation Section 1.721-2(d)); (iii) immediately prior to the distribution of more than a de minimis amount of assets of the Partnership to a Partner in redemption of Units; and (iv) any other date required by Regulations; provided , however , that adjustments pursuant to clauses (i) and (ii) 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; and provided further , that such adjustment shall be made upon the acquisition of Units by SK Telecom and Earthlink. The Carrying Value of any asset of the Partnership distributed to any Partner shall be adjusted immediately prior to such distribution to equal its fair market value. The Carrying Value of any asset contributed (or deemed contributed under Regulations Section 1.704-1(b)(1)(iv)) by a Partner to the Partnership will be the fair market value of such asset at the date of its contribution thereto as determined in good faith by the General Partner. Upon an adjustment to the Carrying Value of any asset pursuant to this definition of Carrying Value, the amount of the adjustment shall be included as gain or loss in computing book income or loss in accordance with Regulation Section 1.704-1(b)(2)(e) for purposes of maintaining Capital Accounts hereunder. Upon adjustment to the Carrying Value of any asset pursuant to this definition, such Carrying Value shall thereafter be adjusted by the depreciation, amortization or cost recovery subsequently taken into account with respect to such asset for purposes of computing Profits and Losses.

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

“ Certificate of Incorporation ” means the Amended and Restated Certificate of Incorporation of the Ultimate Parent, filed on October 10, 2007 with the Secretary of State of the State of Delaware pursuant to the Delaware General Corporation Law, as such certificate may be amended from time to time.

“ Class A Common Stock ” means Class A common stock, par value $0.01 per share, of the Ultimate Parent.

“ Class C Common Stock ” means Class C common stock, par value $0.01 per share, of the Ultimate Parent.

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

“ Common Unit ” means a Unit issued pursuant to Section 2.01, 7.03, 7.05 or clause (x) of Section 7.06(a), with the rights, powers and duties set forth herein.

“ Common Unit Exchange Rate ” has the meaning set forth in Section 7.08(a) of this Agreement.

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

 

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

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

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

“ Disabling Event ” means the General Partner ceasing to be the general partner of the Partnership pursuant to Section 17-402 of the Act.

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

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

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

“ Exchange Rate ” has the meaning set forth in Section 7.08(a) of this Agreement.

“ Exchange Transaction ” has the meaning set forth in Section 8.01(b) of this Agreement.

“ Fiscal Year ” means the calendar year.

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

“ General Partner ” means VMU GP I, LLC or any successor general partner admitted to the Partnership in accordance with the terms of this Agreement, in its capacity as general partner of the Partnership.

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

“ Incentive Plan ” means any equity incentive or similar plan pursuant to which the Ultimate Parent may issue shares of Class A Common Stock or other interest to existing and former directors, officers and employees of the Ultimate Parent or its direct or indirect subsidiaries from time to time.

“ IPO ” means the initial public offering and sale of Class A Common Stock by the Ultimate Parent, pursuant to the Ultimate Parent’s Registration Statement on Form S-1 (File No. 333-124524).

 

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

“ LLC Act ” has the meaning set forth in the recitals of this Agreement.

“ LLC Agreement ” means the Third Amended and Restated Limited Liability Company Agreement of VMU LLC, dated as of August 25, 2003, as amended.

“ Limited Partner ” means each of the Persons from time to time listed as a limited partner in the books and records of the Partnership, each in its capacity as a limited partner of the Partnership. For purposes of the Act, the Limited Partners shall constitute a single class, group or series of limited partners of the Partnership.

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

“ Nonrecourse Deductions ” has the meaning set forth in Treasury Regulations Section 1.704-2(b). The amount of Nonrecourse Deductions of the Partnership for a fiscal year equals the net increase, if any, in the amount of Partnership Minimum Gain of the Partnership during that fiscal year, determined according to the provisions of Treasury Regulations Section 1.704-2(c).

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

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

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

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

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

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

“ Percentage Interest ” means, with respect to any Partner, the quotient obtained by dividing the number of Units then owned by such Partner by the number of Units then owned by all Partners (treating all Units on a fully-diluted, as-converted basis).

 

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“ Permitted Transferee ” has the meaning set forth in Section 8.02 of this Agreement.

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

“ Preferred Unit ” means a preferred Unit issued pursuant to Section 7.03 or clause (y) of Section 7.06(a), with the rights, powers and duties set forth herein.

“ Profits ” and “ Losses ” means, for each Fiscal Year or other period, an amount equal to the Partnership’s taxable income or loss for such year or period, determined in accordance Code Section 703(a) and for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss, with the following adjustments: (a) 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 pursuant to this definition shall be added; (b) any items of expenditure of the Partnership described in Code Section 705(a)(2)(B) or items of expenditure treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses pursuant to this definition, shall be subtracted, (c) in the event the Carrying Value of any property is adjusted pursuant to clauses (i), (ii), or (iii) of that definition, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such property for purposes of computing Profits or Losses; (d) gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Carrying Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Carrying Value; (e) to the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Partner’s interest in the Partnership, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Profits or Losses and (f) 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 which bears the same ratio to such Carrying Value as the U.S. federal income tax depreciation, amortization or other cost recovery deductions bears to such adjusted tax basis (provided that if the U.S. federal income tax depreciation, amortization or other cost recovery deduction is zero, the General Partner may use any reasonable method for purposes of determining depreciation, amortization or other cost recovery deductions in calculating Profits and Losses).

Notwithstanding any other provision of this definition, any items which are specially allocated pursuant to Sections 5.05 and 5.06 shall not be taken into account in computing Profits or Losses.

 

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“ Regulations ” means the Income Tax Regulations, including Temporary Regulations, promulgated under the Code, as such Regulations may be amended (including corresponding provisions of succeeding regulations).

“ Regulatory Allocations ” shall have the meaning specified in Section 5.07.

“ Securities ” has the meaning set forth in Section 7.06(a).

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

“ Securities Issuer ” has the meaning set forth in Section 7.06(a).

“ Series A Preferred Stock ” has the meaning set forth in the recitals of this Agreement.

“ Series A Preferred Unit ” means a Preferred Unit issued pursuant to clause (y) of Section 7.06(a) with the rights, powers and duties set forth in Annex A hereto.

“ SK Telecom ” has the meaning set forth in the recitals of this Agreement.

“ Sprint Tax Receivable Agreement ” means that certain Tax Receivable Agreement, dated as of October 16, 2007, by and among Sprint Ventures, Inc., the Ultimate Parent and the Partnership.

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

“ Tax Matters Partner ” has the meaning set forth in Section 5.12.

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

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

“ Transfer Agent ” has the meaning set forth in Section 7.08(a) of this Agreement.

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

“ Ultimate Parent ” has the meaning set forth in the recitals of this Agreement.

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

 

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“ Unit Exchange Rate ” has the meaning set forth in Section 7.08(a) of this Agreement.

“ Virgin Tax Receivable Agreement ” means that certain Tax Receivable Agreement, dated as of October 16, 2007, between Corvina Holdings Limited and the Ultimate Parent.

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

“ Withheld Taxes ” shall have the meaning specified in Section 5.10(a).

“ Withholding Loan ” shall have the meaning specified in Section 5.10(a).

ARTICLE II

FORMATION, TERM, PURPOSE AND POWERS

SECTION 2.01.  Conversion and Formation . (a) Effective as of the time of the Conversion, (i) the LLC Agreement and all other existing organizational documents of VMU LLC were replaced and superseded in their entirety by the Original Agreement and the Certificate in respect of all periods beginning on or after the Conversion, (ii) VMU GP I, LLC was admitted as a general partner of the Partnership, and the Ultimate Parent, Bluebottle USA Holdings L.P. and Sprint Ventures, Inc. were admitted as limited partners of the Partnership, (iii) all of the limited liability company interests in VMU LLC issued and outstanding immediately prior to the Conversion were converted to Common Units in the Partnership and each of the Partners had the Common Units set forth opposite its name on Schedule I to the Original Agreement, and had a capital account with the Partnership equivalent to the capital account that it had with VMU LLC, (iv) the Partners agreed to continue the business of VMU LLC without dissolution in the form of a Delaware limited partnership governed by this Agreement, and (v) in accordance with Section 17-217(g) of the Act, for all purposes of the laws of the State of Delaware, the Partnership shall be deemed to be the same entity as VMU LLC and for all applicable tax purposes the Partnership is a continuation of VMU LLC.

(b) The Partnership was formed as a limited partnership under the provisions of the Act by the filing of the Conversion Certificate and the Certificate with the Secretary of State of the State of Delaware. If requested by the General Partner, the Limited Partners shall promptly execute all certificates and other documents consistent with the terms of this Agreement necessary for the General Partner to accomplish all filing, recording, publishing and other acts as may be appropriate to comply with all requirements for (a) the formation and operation of a limited partnership under the laws of the State of Delaware, (b) if the General Partner deems it advisable, the operation of the Partnership as a limited partnership, or partnership in which the Limited Partners have limited liability, in all jurisdictions where the Partnership proposes to operate and (c) all other filings required to be made by the Partnership.

 

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SECTION 2.02.  Name . The name of the Partnership shall be, and the business of the Partnership shall be conducted under the name of, Virgin Mobile USA, L.P. or such other name as the General Partner shall reasonably determine.

SECTION 2.03.  Term . The term of the Partnership commenced on the date of the filing of the Certificate, and the term shall continue until the Partnership is dissolved pursuant to this Agreement, subject to the provisions set forth in Article IX and applicable Law. The existence of the Partnership as a separate legal entity shall continue until cancellation of the Certificate in the manner required by the Act.

SECTION 2.04.  Offices . The Partnership may have offices at such places within or without the State of Delaware as the General Partner from time to time may select.

SECTION 2.05.  Agent for Service of Process . The Partnership’s registered agent for service of process in the State of Delaware shall be as set forth in the Certificate, as the same may be amended by the General Partner from time to time.

SECTION 2.06.  Business Purpose . The Partnership was formed for the object and purpose of, and the nature of the business to be conducted by the Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act. Except as otherwise expressly permitted under this Agreement, each of the Ultimate Parent and the General Partner shall conduct all of its operational activities and hold all of its assets (other than (x) equity interests in direct and indirect parent entities of the General Partner and the Partnership and (y) the proceeds of any distributions from the Partnership permitted under this Agreement and any accrued interest thereon) through the Partnership and its subsidiaries. The General Partner shall not hold any assets other than its interest in the Partnership, and for U.S. federal tax purposes shall take any steps necessary to qualify as and remain an entity that is disregarded as separate from its owner under Section 301.7701-3 of the Regulations. Notwithstanding the foregoing, the Ultimate Parent and its subsidiaries shall be permitted to engage in non-operational activities (it being understood that any such activities not specifically contemplated by this Agreement are permitted pursuant to this Section 2.06 only if the holders of Units other than the Ultimate Parent and its subsidiaries would not be prejudiced economically by such activities as compared to holders of the Securities for which such Units may be exchanged pursuant to Section 7.08 of this Agreement) including, but not limited to (a) the ownership, acquisition and disposition of Units, (b) the management of the business and the affairs of the Partnership and its subsidiaries, (c) the operation of the Ultimate Parent or any of its direct or indirect subsidiaries as a reporting company with a class (or classes) of securities registered under the Exchange Act, (d) financing (debt or equity) of the business of the Partnership or any of its direct or indirect subsidiaries, (e) activities relating to maintaining corporate, limited liability company, limited partnership or other entity existence of the Ultimate Parent or any of its direct or indirect subsidiaries, or (f) any activities as are incidental thereto.

SECTION 2.07.  Powers of the Partnership . Subject to the limitations set forth in this Agreement, the Partnership will possess and may exercise all of the powers and privileges granted to it by the Act, by any other Law and this Agreement, together with all powers incidental thereto, so far as such powers are necessary or convenient to the conduct, promotion or attainment of the purpose of the Partnership set forth in Section 2.06.

 

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SECTION 2.08.  Partners; Admission of New Partners . Each of the Persons listed on Schedule I attached hereto, as the same may be amended from time to time in accordance with this Agreement, by virtue of the Conversion and the execution of this Agreement, are Partners of the Partnership. The rights and liabilities of the Partners shall be as provided in the Act, except as is otherwise expressly provided herein. A Person may be admitted from time to time as a new Partner in accordance with Section 8.05; provided , however, that each new Partner shall execute an appropriate supplement to this Agreement pursuant to which the new Partner agrees to be bound by the terms and conditions of the Agreement, as it may be amended from time to time.

SECTION 2.09.  Withdrawal . No Partner shall have the right to withdraw as a Partner of the Partnership other than following the Transfer of all Units owned by such Partner in accordance with Article VIII; provided , however, that a new General Partner or substitute General Partner may be admitted to the Partnership in accordance with Section 8.05.

ARTICLE III

MANAGEMENT

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

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

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

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

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

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

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

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

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

 

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(c) If the General Partner is an entity, it shall be organized under the laws of the United States or any political subdivision thereof. If the General Partner is an individual, it shall be a citizen of the United States.

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

SECTION 3.03.  Expenses . The Partnership shall bear and/or reimburse the General Partner for any expenses incurred by the General Partner (in its capacity as the General Partner).

SECTION 3.04.  Officers . Subject to the direction of the General Partner, the day-to-day administration of the business of the Partnership may be carried out by employees and agents of the General Partner, Ultimate Parent or any of their respective subsidiaries who may be designated as officers of the Partnership by the General Partner, Ultimate Parent or any of their respective subsidiaries, with titles including but not limited to “chief executive officer,” “president,” “vice president,” “treasurer,” “assistant treasurer,” “secretary,” “assistant secretary,” “general manager,” “senior managing director,” “managing director,” “general counsel,” “director” and “chief financial officer,” as and to the extent authorized by the General Partner. The officers of the Partnership shall have such titles and powers and perform such duties as shall be determined from time to time by the General Partner and otherwise as shall customarily pertain to such offices. Any number of offices may be held by the same person. All officers shall be subject to the supervision and direction of the General Partner and may be removed from such office by the General Partner and the authority, duties or responsibilities of any officer of the Partnership may be suspended by the General Partner from time to time, in each case in the sole discretion of the General Partner.

SECTION 3.05.  Authority of Partners . No Limited Partner, in its capacity as such, shall participate in or have any control over the business of the Partnership. Except as expressly provided herein, the Units do not confer any rights upon the Limited Partners to participate in the conduct, control or management of the business of the Partnership described in this Agreement, which conduct, control and management shall be vested exclusively in the General Partner. In all matters relating to or arising out of the conduct of the operation of the Partnership, the decision of the General Partner shall be the decision of the Partnership. Except as required or permitted by Law, or expressly provided in a separate agreement with the Partnership, no Limited Partner who is not also a General Partner (and acting in such capacity) shall take any part in the management or control of the operation or business of the Partnership in its capacity as a Limited Partner, nor shall any Limited Partner who is not also a General Partner (and acting in such capacity) have any right, authority or power to act for or on behalf of or bind the Partnership in his or its capacity as a Limited Partner in any respect or assume any obligation or responsibility of the Partnership or of any other Partner.

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

 

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ARTICLE IV

DISTRIBUTIONS AND LOANS

SECTION 4.01.  Distributions and Loans . (a) Subject to the provisions of Annex A, the General Partner, in its discretion, may authorize distributions by the Partnership to the Partners holding Units, which distributions shall be made as follows:

(i) First , to the holders of Series A Preferred Units in accordance with the preferences in distribution set forth in Annex A hereto (including with respect to Participating Distributions (as defined in Annex A), if any), pro rata in accordance with the number of Series A Preferred Units held by each such Partner at the record date for such distribution; and

(ii) Second , to the holders of Common Units, pro rata in accordance with the number of Common Units held by each such Partner at the record date for such distribution.

Notwithstanding the foregoing sentence, the General Partner, in its discretion, may authorize cash distributions by the Partnership to the Ultimate Parent (which distributions shall be made without pro rata distributions to other Partners) be made in amounts required for Ultimate Parent to pay (A) consideration, if any, for redemption, repurchase, acquisition, cancellation or termination of Class A Common Stock, Class C Common Stock or Series A Preferred Stock in accordance with Section 7.04 hereof; and (B) (i) overhead, legal, accounting and other professional fees and expenses, including any judgments, settlements, penalties, fines or other costs and expenses in respect of any claims against, or any litigation or proceedings involving, the Ultimate Parent or any of its direct or indirect subsidiaries, (ii) fees and expenses related to any securities offering, investment or acquisition (whether or not successful) authorized by the Board of Directors of the Ultimate Parent and (iii) other fees and expenses in connection with the maintenance of existence of the Ultimate Parent and any of its direct and indirect subsidiaries other than the Partnership and its subsidiaries (including, but not limited to, any costs or expenses associated with being a public company listed on a national securities exchange); provided , however , that the amount of any such distributions shall be reduced, to the extent practicable, by the amount of unused cash remaining from the prior distributions by the Partnership to the Ultimate Parent, including any interest earned thereon. Partners holding Units other than Common Units shall be entitled to such distributions as provided in the instruments governing the issuance of such Units, which terms shall be determined by the General Partner in accordance with Section 7.06. Subject to the last two sentences of this Section 4.01(a), the General Partner, in its discretion, may cause the Partnership or any of its subsidiaries to make loans to the Ultimate Parent or any of its direct or indirect subsidiaries for any bona fide business purposes; provided , however , that if any loan to the Ultimate Parent or any of its direct or indirect subsidiaries other than the Partnership and its subsidiaries is cancelled or is not repaid within 90 days from the date of such loan, such loan shall be deemed to constitute a distribution to the Ultimate Parent and its direct and indirect subsidiaries pursuant to Section 4.01(a) (ii) of this Agreement and the Partnership shall be required to make pro rata distributions to all other Partners holding Common Units in accordance with such Partners’ respective Percentage Interests on the date of such loan. If the proceeds of any loan described in the preceding sentence are used to make payments or distributions other than as described in clause (A) or (B) of this Section 4.01(a) and such loan is outstanding as of the date that a Partner (other than the Ultimate Parent or its direct or indirect subsidiaries) exchanges any Units pursuant to Section 7.08, such loan shall be deemed to

 

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constitute a distribution to the Ultimate Parent and its direct and indirect subsidiaries pursuant to Section 4.01(a) (ii) of this Agreement and the Partnership shall be required to make pro rata distributions to all other Limited Partners in accordance with such Partners’ respective Percentage Interests as of the date of such loan. Notwithstanding the foregoing, the General Partner shall not be permitted to cause the Partnership or any of its subsidiaries to make any loan to the Ultimate Parent or any of its direct or indirect subsidiaries if, at any time from the time that such loan is made through and including the time that any corresponding pro rata distribution to other Partners pursuant to the immediately preceding two sentences is or may become required to be made, the making of any such corresponding pro rata distribution is or would be prohibited. From and after the date of any loan permitted by, and made in accordance with, the immediately preceding three sentences, if any loan to the Ultimate Parent or any of its direct or indirect subsidiaries remains outstanding, the Ultimate Parent and the General Partner agree not to enter into any contractual or other arrangement or otherwise take any action, or cause the Partnership or any of its subsidiaries to do any of the foregoing, that would cause the Partnership not to be permitted or able to make any pro rata distribution to any Partner in accordance with this Section 4.01(a).

(b) Tax Distributions . To the extent of available cash (as determined by the General Partner), at the election of the General Partner in its sole discretion the Partnership may make cash distributions (“ Tax Distributions ”) to each Partner holding Units at such times during the calendar year as shall enable such Partners to use such Tax Distributions to satisfy their estimated and final income tax liabilities for each taxable year. To the extent any such Tax Distribution is made, such Partners the income of which is included in the consolidated group of which the Ultimate Parent is a member may receive, in the aggregate, Tax Distributions in an amount up to the product of (i) the amount of taxable income allocated to such Partners in respect of their Units in such taxable year times (ii) the Assumed Tax Rate, and each other Partner holding Units shall receive a Tax Distribution which shall be proportionate to the distribution made to such Partners, based upon relative Percentage Interests at the record date of the distribution.

SECTION 4.02.  Liquidation Distributions . Distributions made upon liquidation of the Partnership shall be made as provided in Section 9.03.

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

ARTICLE V

CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS;

TAX ALLOCATIONS; TAX MATTERS

SECTION 5.01.  Initial Capital Contributions . The Partners have made or are deemed to have made, on or prior to the date hereof, Capital Contributions and have acquired the number of Units as specified opposite their respective names on Schedule I.

 

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

(b) The General Partner may, at any time and from time to time, determine that the Partnership requires additional funds (“ Additional Funds ”) for such purposes relating to the Partnership’s business as the General Partner may determine in its sole and absolute discretion. Additional Funds may be obtained by the Partnership, at the election of the General Partner, in any manner provided in, and in accordance with, the terms of this Agreement without the approval of any Limited Partners.

(c) The General Partner, on behalf of the Partnership, may obtain any Additional Funds by causing the Partnership, or arranging for any of the direct or indirect subsidiaries of the Ultimate Parent other than the Partnership, to incur indebtedness to any Person, in each case upon such terms as the General Partner determines are appropriate, including making such indebtedness convertible, redeemable or exchangeable for Units; provided , however, that the Partnership shall not incur any such indebtedness if (i) a breach, violation or default of such indebtedness would be deemed to occur by virtue of the Transfer of any partnership interest, (ii) such indebtedness is recourse to any Partner (unless the Partner otherwise agrees) or (iii) with respect to any Partnership borrowing in place as of the date of the Original Agreement or any subsequent refinancing or replacement thereof (but not in excess of such amounts as were in place as of the date of the Original Agreement), any Partner or related person would be permitted to guarantee a Partnership borrowing or otherwise bear the “economic risk of loss” that would result in an allocation of such borrowing to such Partner under the principles of Section 752 of the Code. The General Partner, on behalf of the Partnership, may obtain any Additional Funds by causing the Partnership to incur indebtedness to the Ultimate Parent or any of its subsidiaries if such indebtedness is, to the extent permitted by law, on substantially the same terms and conditions (including interest rate, repayment schedule, and conversion, redemption, repurchase and exchange rights, but not including financial covenants) as indebtedness incurred by the Ultimate Parent or any of its subsidiaries, the net proceeds of which are loaned to the Partnership to provide such Additional Funds; provided , however , that the Partnership shall not use the proceeds of any such indebtedness to pay, directly or indirectly, any principal amount or otherwise repay or refinance any indebtedness of the Partnership outstanding on the date of the Original Agreement. Except as provided in the penultimate sentence in Section 4.01(a), none of the Ultimate Parent or any of its direct or indirect subsidiaries other than the Partnership and its subsidiaries shall incur any indebtedness unless the net proceeds of such indebtedness are loaned to the Partnership or its subsidiaries on substantially the same terms and conditions (other than financial covenants) as the underlying indebtedness.

SECTION 5.03.  Capital Accounts . There has been established for each Partner on the books of the Partnership, a capital account (each being a “ Capital Account ”). A Partner that holds more than one class of interests with respect to the Partnership shall have a single Capital Account relating to all of its interests held in the Partnership. The Capital Account of each Partner shall be credited with Capital Contributions made (or deemed to have been made) by such Partner, all Profits allocated to such Partner pursuant to Section 5.04 and any items of income or gain which are specially allocated pursuant to Section 5.05 and 5.06; and shall be debited with all Losses allocated to such Partner pursuant to Section 5.04, any items of loss or deduction of the Partnership specially allocated to such Partner pursuant to Section 5.05 and 5.06, and all cash and the Carrying

 

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Value of any property (net of liabilities assumed by such Partner and the liabilities to which such property is subject) distributed by the Partnership to such Partner. Any references in any section of this Agreement to the Capital Account of a Partner shall be deemed to refer to such Capital Account as the same may be credited or debited from time to time as set forth above. In the event of any transfer of any interest in the Partnership in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred interest.

SECTION 5.04.  Allocations of Profits and Losses . Except as otherwise provided in this Agreement, Profits, Losses and, to the extent necessary, individual items of income, gain, loss or deduction shall be allocated in a manner such that the Capital Account of each Partner, immediately after making such allocation is, as nearly as possible, equal (proportionately) to (i) the distributions that would be made pursuant to Section 4.01(a) and Article IX if the Partnership were dissolved, its affairs wound up and its assets sold for cash equal to their Carrying Values, all Partnership liabilities were satisfied (limited with respect to each non-recourse liability to the Carrying Value of the assets securing such liability), including the Partnership’s share of any liabilities of an entity treated as a partnership for U.S. federal income tax purposes of which the Partnership is a partner and the net assets of the Partnership were distributed in accordance with Section 4.01(a) and Article IX to the Partners immediately after making such allocation, minus (ii) such Partner’s share of Partnership Minimum Gain and Partner Nonrecourse Debt Minimum Gain, computed immediately prior to the hypothetical sale of assets.

SECTION 5.05.  Special Allocations . The following special allocations shall be made in the following order:

(a) Minimum Gain Chargeback . If there is a net decrease in “partnership minimum gain” (as that term is defined in Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations) during any Fiscal Year, each Partner shall, to the extent required by Section 1.704-2(f) of the Regulations, be specially allocated items of Partnership income and gain for such Fiscal Year (and, to the extent required by Section 1.704-2(j)(2)(iii) of the Regulations, subsequent Fiscal Years) in an amount equal to that Partner’s share of the net decrease in partnership minimum gain. Allocations pursuant to the previous sentence shall be made in accordance with Section 1.704-2(f)(6) of the Regulations. This Section 5.05(a) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith.

(b) Partner Minimum Gain Chargeback . If there is a net decrease in “partner nonrecourse debt minimum gain” (as that term is defined in Sections 1.704-2(i)(2) and (3) of the Regulations) during any Fiscal Year, each Partner who has a share of that partner nonrecourse debt minimum gain as of the beginning of the Fiscal Year shall, to the extent required by Section 1.704-2(i)(4) of the Regulations, be specially allocated items of Partnership income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) equal to that Partner’s share of the net decrease in partner nonrecourse debt minimum gain. Allocations pursuant to the previous sentence shall be made in accordance with Section 1.704-2(i)(4) of the Regulations. This Section 5.05(b) is intended to comply with the requirement in Section 1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith.

 

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(c) Nonrecourse Deductions . “Nonrecourse deductions” (as that term is defined in Sections 1.704-2(b)(1) and (c) of the Regulations) for any Fiscal Year or other period shall be specially allocated to the Partners in proportion to their Percentage Interests.

(d) Partner Nonrecourse Deductions . “Partner nonrecourse deductions” (as that term is defined in Section 1.704-2(i) of the Regulations) for any Fiscal Year or other period shall be specially allocated to the Partner who bears the economic risk of loss with respect to the “partner nonrecourse debt” (as that term is defined in Section 1.704-2(b)(4) of the Regulations) to which such partner nonrecourse deductions are attributable, in accordance with Regulations Section 1.704-2(i)(1).

(e) Section 754 Adjustments . To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Regulations.

(f) Matching Allocations . If the Ultimate Parent or any of its direct or indirect subsidiaries receives a distribution pursuant to clause (B) of Section 4.01(a) during any Fiscal Year, the Ultimate Parent or such subsidiary shall be specially allocated items of gross income for such Fiscal Year (and subsequent Fiscal Years, if necessary) in an amount equal to such distribution.

SECTION 5.06.  Curative Allocations . The allocations set forth in Section 5.05 (the “ Regulatory Allocations ”) are intended to comply with certain requirements of the Regulations. It is the intent of the Partners that, to the extent possible, all Regulatory Allocations that are made be offset either with other Regulatory Allocations or with special allocations pursuant to this Section 5.06. Therefore, notwithstanding any other provision of this Article V (other than the Regulatory Allocations), the General Partner shall make such offsetting special allocations in whatever manner it determines appropriate so that, after such offsetting allocations are made, each Partner’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Partner would have had if the Regulatory Allocations were not part of the Agreement and all Partnership items were allocated pursuant to Section 5.04. In exercising its discretion under this Section 5.06, the General Partner shall take into account future Regulatory Allocations under Sections 5.05(a) and 5.05(b) that, although not yet made, are likely to offset other Regulatory Allocations previously made under Sections 5.05(c) and 5.05(d).

SECTION 5.07.  Other Allocation Rules .

(a) For purposes of determining the Profits, Losses, or any other items allocable to any period, Profits, Losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the General Partner using any permissible method under Code Section 706 and the Regulations thereunder.

 

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(b) Except as otherwise provided in this Agreement, all items of Partnership income, gain, loss, deduction, and any other allocations not otherwise provided for shall be divided among the Partners in the same proportions as they share Profits or Losses, as the case may be, for the Fiscal Year.

(c) For purposes of determining the Partners’ shares of “nonrecourse liabilities” (as that term is defined in Section 1.752-1(a)(2) of the Regulations), any “excess nonrecourse liabilities” (as that term is defined in Section 1.752-3(a)(3) of the Regulations) shall first be allocated in accordance with the excess “built-in gain” that is allocable to the Partners under Code Section 704(c) (or under principles similar to Code Section 704(c) in connection with a revaluation of Partnership property), as described in Section 1.752-3(a)(3) of the Regulations. Any remaining excess nonrecourse liabilities shall be allocated among the Partners in accordance with their Percentage Interests.

(d) In the event Units are acquired through the exercise of a noncompensatory option (within the meaning of Proposed Regulation Section 1.721-2(d)), the Partnership shall comply with the rules of Proposed Regulation Section 1.704-1(b)(2)(iv)(s) and any corresponding provisions of the final version of such regulations. In the event that capital is reallocated among the Partners pursuant to Proposed Regulation Section 1.704-1(b)(2)(iv)(s)(3) or any corresponding provision of the final version of such regulations, the General Partner shall make corrective allocations, within the meaning of Proposed Regulation Section 1.704-1(b)(4)(x), so as to take into account the capital reallocation.

SECTION 5.08.  Tax Allocations: Code Section 704(c) . In accordance with Code Section 704(c) and the Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Partnership shall, solely for tax purposes, be allocated among the Partners so as to take account of any variation between the adjusted basis of such property to the Partnership for federal income tax purposes and its initial Carrying Value.

In the event the Carrying Value of any Partnership asset is adjusted pursuant to clauses (i), (ii), or (iii) of the definition of Carrying Value, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Carrying Value in the same manner as under Code Section 704(c) and the Regulations thereunder using the “traditional method”; provided , that the “remedial method” shall be used with respect to any “section 197 intangible” (as defined in Code Section 197(d)) that is acquired by the Company in the transactions contemplated by the Transaction Agreement.

Any elections or other decisions relating to such allocations shall be made by the General Partner. Allocations pursuant to this Section 5.08 are solely for purposes of U.S. federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any Partner’s Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement.

 

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SECTION 5.09.  Tax Withholding .

(a) The Partnership shall withhold and/or pay over to the Internal Revenue Service or other applicable taxing authority all taxes or withholdings, and all interest, penalties, additions to tax, and similar liabilities in connection therewith or attributable thereto (hereinafter “ Withheld Taxes ”) to the extent that the Tax Matters Partner in good faith determines that such withholding and/or payment is required by the Code or any other law, rule, or regulation. The Tax Matters Partner in good faith shall determine to which Partner such Withheld Taxes are attributable. For example, Withheld Taxes measured with respect to a Partner’s distributive share of the Partnership’s income, gain, or other Partnership item would be attributable to such Partner. All Withheld Taxes withheld and/or paid over that are attributable to a Partner shall, at the option of the Tax Matters Partner, (i) be promptly paid to the Partnership by the Partner on whose behalf such advances of Withheld Taxes were made or (ii) be considered a loan (a “ Withholding Loan ”) by the Partnership to such Partner. Whenever the Tax Matters Partner selects the option set forth in clause (ii) of the immediately preceding sentence, the borrowing Partner shall repay such Withholding Loan within ten (10) days after the Tax Matters Partner delivers a written demand therefor, together with interest from the date such loan was made until the date of the repayment thereof at a rate per annum equal to two percent (2%) plus the prime interest rate of Chase Manhattan Bank (or its successor) in effect during such period (or, if less, the maximum interest rate allowed under applicable law). In addition to any other rights of the Partnership to enforce its right to receive payment of the Withholding Loan, plus any accrued interest thereon, the Partnership may deduct from any distribution to be made to a borrowing Partner or any amount available for distribution to a borrowing Partner an amount not greater than the outstanding balance of any Withholding Loan, plus any accrued interest thereon, as a payment in total or partial satisfaction thereof. In the event that the Partnership deducts the amount of the Withholding Loan plus any accrued interest thereon from any actual distribution or amount otherwise available to be distributed, the amount that was so deducted shall be treated as an actual distribution to the borrowing Partner for all purposes of this Agreement. With respect to any amounts not offset pursuant to the immediately preceding sentence, the maturity of such Withholding Loan shall be the dissolution of the Partnership.

(b) If any amount payable to the Partnership is reduced because the Person paying that amount withholds and/or pays over to the Internal Revenue Service or other applicable taxing authority any amount as a result of the status of a Partner, the Tax Matters Partner shall make such adjustments to amounts distributed and allocated among Partners as it determines to be fair and equitable. For example, if a portion of interest income earned by the Partnership is withheld by the payor and paid over to the Internal Revenue Service because a particular Partner is a non-U.S. Person, the Tax Matters Partner shall include such withheld and paid over amount in computing amounts available for distribution to the Partners pursuant to Section 4.01(a) and treat such withheld and paid over amount as if that amount were distributed to the Partner in satisfaction of whose tax liability such amount was withheld and paid over.

SECTION 5.10.  Successors in Interest . If a Partner Transfers all or part of its Units, references in this Article V to amounts previously contributed by such Partner or to amounts previously allocated or distributed to such Partner shall refer to the transferee to the extent they pertain to the transferred interest.

SECTION 5.11.  Tax Matters . The General Partner shall be the initial “tax matters partner” within the meaning of Section 6231(a)(7) of the Code (the “ Tax Matters Partner ”). The Tax Matters Partner shall take reasonable action to cause each other Partner to be treated as a

 

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“notice partner” within the meaning of Section 6231(a)(8) of the Code. All reasonable expenses incurred by a Partner while acting in its capacity as Tax Matters Partner shall be paid or reimbursed by the Partnership.

Each Partner shall be given at least five (5) business days advance notice from the Tax Matters Partner of the time and place of, and shall have the right to participate in (i) any material aspect of any administrative proceeding relating to the determination of partnership items at the Partnership level and (ii) any material discussions with the Internal Revenue Service