FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of NMR LICENSING ASSOCIATES, L.P

Exhibit 3.65

EXECUTION COPY

FIFTH AMENDED AND RESTATED

AGREEMENT OF

LIMITED PARTNERSHIP

of

NMR LICENSING ASSOCIATES, L.P.,

A Delaware limited partnership

By and Among

NMR INVESTING I, INC.,

and

NIELSEN MEDIA RESEARCH, INC.

Dated as of January 1, 2004

TABLE OF CONTENTS

 

 

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EXHIBITS

 

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FIFTH AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF

NMR LICENSING ASSOCIATES, L.P.,

A DELAWARE LIMITED PARTNERSHIP

This FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is entered into and shall be effective as of the 1st day of January, 2004, by and between NMR INVESTING I, INC., a Delaware corporation ( “Investing I” ), as the General Partner, and NIELSEN MEDIA RESEARCH, INC., a Delaware corporation ( “Media” ), as the Limited Partner.

ARTICLE I

THE PARTNERSHIP

Section 1.01. Formation.

The Partnership was formed on April 29, 1998. The Partnership exists under that certain Fourth Amended and Restated Agreement of Limited Partnership of NMR Licensing Associates, L.P. entered into and effective as of July 7, 1999 (as amended or other modified, the “ Fourth Amended Partnership Agreement ”). Effective as of December 28, 2000, pursuant to a Purchase Agreement among RBNMR, Inc., Media and Investing I, (i) Media purchased the then Class A Limited Partner Interest of RBNMR, Inc; (ii) Media was admitted to the Partnership as a Class A Limited Partner in respect of the acquired Class A Limited Partner Interest; (iii) the Class A Limited Partner Interest thus acquired by Media was converted to a Class B Limited Partner Interest; and (iv) RBNMR, Inc. withdrew from the Partnership as a Class A Limited Partner with respect to the Class A Limited Partner Interest. Thereafter, as of December 31, 2000, under the terms of a Distribution Agreement among the Partnership, Media, Investing I and RBNMR, Inc., the Partnership distributed certain software assets to Media in partial retirement of its Class B Limited Partner Interest. On December 30, 2003, pursuant to a Purchase Agreement among RBNMR, Inc., Media and Investing I, (a) Media purchased the then Class A1 Limited Partner Interest of RBNMR, Inc.; (b) Media was admitted to the Partnership as a Class A1 Limited Partner in respect of the acquired Class A1 Limited Partner Interest; and (c) RBNMR, Inc. withdrew from the Partnership as a Class A1 Limited Partner with respect to the Class A1 Limited Partner Interest. On December 31, 2003, the Partnership acquired certain additional software from Media pursuant to the Software Purchase Agreement. Simultaneously with the execution of this Agreement, (i) the Partnership shall be authorized to issue a single class of limited partner interest (the “ Limited Partner Interest ”) and (ii) Media’s Class A1 Limited Partner Interest and Class B Limited Partner Interest held under the Fourth Amended Partnership Agreement are hereby converted into, and Media is hereby admitted as a Limited Partner in respect of, the Limited Partner Interest. Investing I and Media, constituting all the current Partners in the Partnership, hereby agree to continue the Partnership as a limited partnership pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement. This Agreement completely amends, restates and supersedes the Fourth Amended Partnership Agreement.

Section 1.02. Name.

The name of the Partnership shall continue to be NMR Licensing Associates, LP., and all business of the Partnership shall be conducted in such name or in the discretion of the General Partner, under any other name; provided that, the General Partner may change the name of the Partnership only upon reasonable advance notice to the Limited Partners.

Section 1.03. Purpose.

The purpose of the Partnership is to engage in the business of owning certain investments in Permitted Assets, to manage, protect, conserve and dispose of such investments in Permitted Assets, to make such additional investments and engage in such additional business endeavors as are permitted under this Agreement or otherwise as the Partners may agree, and to engage in activities related or incidental thereto. The Partnership shall have the power to do any and all acts necessary, appropriate, proper, advisable, incidental or convenient to or in furtherance of the purpose of the Partnership and shall have without limitation, any and all powers that may be exercised on behalf of the Partnership by the General Partner pursuant to Section 1.09(c) and Article V hereof.

Section 1.04. Principal Place of Business.

The principal place of business of the Partnership shall continue to be at 801 West Street, 2nd Floor, Wilmington, Delaware 19801-1545. The General Partner may change the principal place of business of the Partnership to any other place within or without the State of Delaware upon ten (10) Business Days’ notice to the Limited Partner. The registered office of the Partnership in the State of Delaware is located at The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.

Section 1.05. Term.

The term of the Partnership commenced on the date the certificate of limited partnership described in Section 17-201 of the Act (the “ Certificate ”) was filed in the office of the Secretary of State of the State of Delaware in accordance with the Act and shall continue until the winding up and liquidation of the Partnership and its business is completed following a Liquidating Event as provided in Article XII hereof.

Section 1.06. Filings; Agent for Service of Process.

(a) The General Partner has caused the Certificate to be filed in the office of the Secretary of State of the State of Delaware in accordance with the provisions of the Act. The General Partner shall take any and all other actions, including without limitation the filing of amendments to the Certificate, reasonably necessary to perfect and maintain the status of the Partnership as a limited partnership under the laws of the State of Delaware or any other states in which the Partnership is engaged in business. The General Partner shall cause amendments to the Certificate to be filed whenever required by the Act. Such amendments may be executed by the General Partner and by each Person designated in the amendment as a new general partner.

 

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(b) The registered agent for service of process on the Partnership in the State of Delaware shall continue to be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801 or any successor as appointed by the General Partner in accordance with the Act.

(c) Upon the dissolution and completion of the winding up and liquidation of the Partnership, the General Partner (or, in the event there is no remaining General Partner, any Person appointed pursuant to Section 12.08 hereof) shall promptly execute and cause to be filed certificates of cancellation in accordance with the Act and the laws of any other states or jurisdictions in which the General Partner or such other appointed Person, as the case may be, deems such filing necessary or advisable.

Section 1.07. Title to Partnership Property.

All Partnership Property shall be owned by the Partnership as an entity and no Partner shall have any ownership interest in such property in its individual name or right, and each Partner’s interest in the Partnership shall be personal property for all purposes. The Partnership shall hold all of its property in the name of the Partnership and shall cause the Partnership Subsidiary to hold all of the Partnership Subsidiary’s property in the name of the Partnership Subsidiary and, in either case, not in the name of any Partner.

Section 1.08. Payments of Individual Obligations.

The Partnership’s credit and assets shall be used solely for the benefit of the Partnership, and no asset of the Partnership shall be Transferred or encumbered for or in payment of any individual obligation of any Partner.

Section 1.09. Independent Activities; Transactions with Affiliates.

(a) The General Partner and any of its Affiliates shall be required to devote only such time to the affairs of the Partnership as the General Partner determines in its sole discretion may be necessary to manage and operate the Partnership, and each such Person, shall be free to serve any other Person or enterprise in any capacity that it may deem appropriate in its discretion.

(b) To the extent permitted by applicable law and except as otherwise provided in this Agreement, each Partner acknowledges that the other Partners (each acting on its own behalf) and their Affiliates are free to engage or invest in an unlimited number of activities or businesses, any one or more of which may be related to the activities or businesses of the Partnership, without having or incurring any obligation to offer any interest in such activities or businesses to the Partnership or any Partner, and neither this Agreement nor any activity undertaken pursuant to this Agreement shall prevent any Partner or its Affiliates from engaging in such activities, or require any Partner to permit the Partnership or any Partner or its Affiliates to participate in any such activities, and as a material part of the consideration for the execution of this Agreement by each Partner, each Partner hereby waives, relinquishes, and renounces any such right or claim of participation. The Partners acknowledge that certain conflicts of interest may thus arise and hereby agree that the specific rights with respect to the Partners’ and their Affiliates’ freedom of action provided in this Section 1.09(b) are sufficient to protect their respective interests in relation to such possible conflicts and are to be in lieu of all other possible limitations which might otherwise be implied in fact, in law or in equity.

 

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(c) To the extent permitted by applicable law and except as otherwise provided in this Agreement, the General Partner, when acting on behalf of the Partnership, is hereby authorized to purchase property from, sell property to or otherwise deal with any Partner, acting on its own behalf, or any Affiliate of any Partner; provided that any such purchase, sale or other transaction shall be in the ordinary course of the Partnership’s business and shall be made on terms and conditions which are no less favorable to the Partnership than if the sale, purchase or other transaction had been made with an independent third party on prevailing market terms. The Partners agree that the Release, the 2004 Media Lease, the Demand Loans, the Media Guaranteed Demand Loans, the Demand Notes, the Software Purchase Agreement, any Term Note to Athenian, and any fees paid pursuant to Section 5.06(d) hereof shall satisfy this independent third-party standard and the Partners hereby authorize the General Partner to cause the Partnership or the Partnership Subsidiary to enter into the documents referenced in this Section 1.09(c) or confirm that the General Partner was authorized to cause the Partnership or the Partnership Subsidiary to enter into the documents referenced in this Section 1.09(c) that were entered into prior to the Closing Date.

(d) Each Partner and any Affiliate thereof may also borrow money from, and transact other business with the Partnership and, subject to other applicable law, has the same rights and obligations with respect thereto as a Person who is not a Partner. The existence of these relationships and acting in such capacities will not result in the Limited Partner being deemed to be participating in the control of the business of the Partnership or otherwise affect the limited liability of the Limited Partner.

Section 1.10. Definitions.

Capitalized words and phrases used in this Agreement have the following meanings:

“ 2004 Media Lease ” means that certain Lease Agreement dated as of January 1, 2004 between the Partnership and Media pursuant to which the Software Assets are leased to Media.

“ Act ” means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del. Code Ann. tit. 6, Sections 17-101 to 17-1111, as amended, modified or supplemented from time to time (or any corresponding provisions of succeeding law).

“ Additional Capital Contributions ” means, with respect to each Partner, the Capital Contributions made by such Partner (or its predecessors in interest) pursuant to Section 2.03 hereof.

“ Adjusted Capital Account Deficit ” means, with respect to each Limited Partner, the deficit balance, if any, in such Limited Partner’s Capital Account as of the end of the relevant Allocation Year, after giving effect to the following adjustments:

 

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(i) Credit to such Capital Account any amounts which the Limited Partner is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and

(ii) Debit to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the Regulations.

The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.

“ Affiliate ” means, with respect any Person, (i) any Person directly or indirectly controlling, controlled by or under common control with such Person, (ii) any officer, director or general partner of such Person, or (iii) any Person who is an officer, director, general partner or trustee of any Person described in clauses (i) or (ii) of this sentence. For purposes of this definition, the term “ control ,” (including with correlative meanings, the terms “ controlling ,” “ controlled by ” or “ under common control with ”) means 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 securities, by contract or otherwise.

“ Agreement ” means this Fifth Amended and Restated Agreement of Limited Partnership, as amended, modified or supplemented from time to time. All references in this Agreement to “Section” or “Sections” are to a section or sections of this Agreement unless otherwise specified.

“ Allocation Year ” means (i) the period commencing on the Closing Date and ending on December 31, 2004, (ii) any subsequent period commencing on January 1 and ending on the following December 31, or (iii) any portion of the period described in clause (i) or (ii) for which the Partnership is required to allocate Profits, Losses and other items of Partnership income, gain, loss or deduction pursuant to Article III hereof.

“ Alternative Appraiser ” means any of the “Big Four” accounting firms (including appraisal divisions thereof or successors thereto), American Appraisal Associates Inc., Duff & Phelps LLC, Empire Appraisal Company, Hempstead & Co., Stephen C. Gerard (including any firm with which he is associated), Standard Poor’s Corporate Value Consulting, a division of The McGraw-Hill Companies, Inc., or with the consent of all Partners, any firm recommended by any of the foregoing Alternative Appraisers.

“ Bankruptcy ” means with respect to any Person, a Voluntary Bankruptcy or an Involuntary Bankruptcy. A “ Voluntary Bankruptcy ” means, with respect to any Person, (a) (i) the inability of such Person generally to pay its debts as such debts become due, (ii) the failure of such Person generally to pay its debts as such debts become due, or (iii) an admission in writing by such Person of its inability to pay its debts generally or a general assignment by such Person for the benefit of creditors, (b) the filing of any petition or answer by such Person seeking to adjudicate it a bankrupt or insolvent, or

 

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seeking for itself any liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of such Person or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking, consenting to, or acquiescing in the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for such Person or for any substantial part of its property, or (c) corporate action taken by such Person to authorize any of the actions set forth above. An “ Involuntary Bankruptcy ” means, with respect to any Person, without the consent or acquiescence of such Person, the entering of an order for relief or approving a petition for relief or reorganization or any other petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or other similar relief under any present or future bankruptcy, insolvency or similar statute, law or regulation, or the filing of any such petition against such Person which petition shall not be dismissed within sixty (60) days, or, without the consent or acquiescence of such Person, the entering of an order appointing a trustee, custodian, receiver or liquidator of such Person or of all or any substantial part of the property of such Person which order shall not be dismissed within sixty (60) days. It is the intent of the Partners that these definitions supersede those set forth in Section 17-402(a)(4) of the Act.

“ Business Day ” means any day except Saturday or Sunday or any other day on which commercial banks are required or authorized by law to close in New York City or on which dealings in deposits are not carried on in the London interbank market.

“ Capital Account ” means, with respect to any Partner, the Capital Account maintained for such Partner in accordance with the following provisions:

(i) To each Partner’s Capital Account there shall be credited such Partner’s Capital Contributions, such Partner’s distributive share of Profits and any items in the nature of income or gain which are specially allocated pursuant to Sections 3.03 or 3.04 hereof.

(ii) To each Partner’s Capital Account there shall be debited the amount of cash and the Gross Asset Value of any Partnership Property distributed to such Partner pursuant to any provision of this Agreement, such Partner’s distributive share of Losses and any items in the nature of expenses or losses which are specially allocated pursuant to Sections 3.03 or 3.04 hereof.

(iii) In the event all or a portion of an Interest in the Partnership is Transferred 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.

The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-1(b), and they shall be interpreted and applied in a manner consistent with such Regulations. In the event the General Partner shall determine that it is prudent to modify the manner in which the Capital Accounts, or any debt or credits thereto (including, without limitation, debits or credits relating to liabilities which are secured by

 

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contributed or distributed property or which are assumed by the Partnership or any Partner), are computed in order to comply with such Regulations, the General Partner may make such modification, provided that it is not likely to have a Material Adverse Effect on the amounts distributable to any Partner pursuant to Article XII hereof upon the dissolution of the Partnership. The General Partner also shall (i) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Partners and the amount of Partnership capital reflected on the Partnership’s balance sheet, as computed for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(g), and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Regulations Section 1.704-1(b), provided that, to the extent that any such adjustment is inconsistent with other provisions of this Agreement and would have a Material Adverse Effect on any Limited Partner, such adjustment shall require the consent of such Limited Partner.

“ Capital Contributions ” means, with respect to any Partner, the amount of money and the initial Gross Asset Value of any property (other than money) contributed to the Partnership by such Partner (or its predecessors in interest) with respect to the Interest in the Partnership held by such Partner.

“ Cash Equivalents ” shall mean cash and any of the following: (i) readily marketable direct obligations of the Government of the United States or any agency or instrumentality thereof or obligation unconditionally guaranteed by the full faith and credit of the Government of the United States, or (ii) certificates of deposit of or time or demand deposits with (A) any commercial bank that is a member of the Federal Reserve System, the parent of which issues commercial paper rated at least P-1 (or the then equivalent grade) by Moody’s or A-1 (or the then equivalent grade) by S&P, is organized under the laws of the United States or any State thereof, and the long term unsecured debt of which is rated A2 or better by Moody’s and A or better by S&P or (B) any commercial bank organized under the laws of any OECD member country (as of the effective date of this Agreement) which is not subject to currency controls and the long term unsecured debt of which is rated A2 or better by Moody’s and A or better by S&P; provided , however , that all Partnership Property described in this definition other than cash shall have a maturity of not longer than ninety (90) days.

“ Certificate ” has the meaning set forth in Section 1.05 hereof.

“ Closing Date ” means January 1, 2004.

“ Closing Date Capital Account ” means, with respect to each Partner, the corresponding Capital Account balance stated for such Partner in Section 2.06 hereof.

“ Code ” means the Internal Revenue Code of 1986, as amended, modified or supplemented from time to time, or any successor legislation.

“ CP Rate ” has the meaning set forth in the form Demand Note.

 

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“ Debt ” of a Person means (i) any indebtedness for borrowed money or deferred purchase price of property or services as evidenced by a note, bond, or other instrument, (ii) obligations to pay money as lessee under capital leases, (iii) to the extent of the fair market value of any asset owned or held by such Person, obligations to pay money secured by any mortgage, pledge, security interest, encumbrance, lien or charge of any kind existing on such asset whether or not such Person has assumed or become liable for the obligations secured thereby, (iv) obligations in respect of accounts payable, other than accounts payable that are incurred in the ordinary course of such Person’s business and are not delinquent or are being contested in good faith by appropriate proceedings, and (v) obligations under direct or indirect guarantees of (including obligations (contingent or otherwise) to assure a creditor, against loss in respect of) indebtedness or obligations of the kinds referred to in clauses (i), (ii), (iii) and (iv) above.

“ Demand Loan ” means a loan that is made by the Partnership or the Partnership Subsidiary to, and at all times the obligor under which is, Media or any Affiliate of Media and the obligations of Media with respect to which rank at all times at least pari passu with all other senior unsecured Debt of Media, provided that each such Demand Loan (i) is payable on demand, (ii) bears interest at a floating rate (based on (a) 1-month, 2-month, 3-month, 6-month or 12-month LIBOR or (b) a 30-day, 60-day, 90-day or 180-day CP Rate) plus a margin that reflects the rate that would be charged to Media on an arm’s length basis (taking into account general credit conditions as well as Media’s debt ratings at the time the interest rate of such borrowing is set), and the General Partner shall review the appropriateness of the interest rates not less than every six months, (iii) is denominated in U.S. dollars, and (iv) is evidenced by a Demand Note including a Guaranty of Payment by Media in the event that the Demand Loan is made to any Affiliate of Media.

“ Demand Note ” means any promissory note evidencing a Demand Loan in the form attached hereto as Exhibit A .

“ Depreciation ” means, for each Allocation Year, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable for federal income tax purposes with respect to an asset for such Allocation Year, except that (i) with respect to any asset whose Gross Asset Value differs from its adjusted tax basis for United States federal income tax purposes and which difference is being eliminated by use of the “remedial method” defined by § 1.704-3(d) of the Regulations, Depreciation for such Allocation Year shall be the amount of book basis recovered for such Allocation Year under the rules prescribed by § 1.704-3(d)(2) of the Regulations; and (ii) with respect to any other asset whose Gross Asset Value differs from its adjusted basis for federal income tax purposes at the beginning of such Allocation Year, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Allocation Year bears to such beginning adjusted tax basis; provided, however , that if the adjusted basis for federal income tax purposes of an asset at the beginning or such Allocation Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the General Partner.

 

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“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Expenses ” means any and all judgments, damages or penalties with respect to, or amounts paid in settlement of, claims (including, but not limited to negligence, strict or absolute liability, liability in tort and liabilities arising out of violation of laws or regulatory requirements of any kind), actions, or suits; and any and all taxes (including, without limitation, taxes on any indemnification payments and including interest, additions to tax and penalties), liabilities, obligations, costs, expenses and disbursements (including, without limitation, reasonable legal fees and expenses).

“ Fiscal Quarter ” means (i) the period commencing on the Closing Date and ending on March 31, 2004, and (ii) any subsequent three-month period commencing on each of January 1, April 1, July 1 and October 1 and ending on the next of March 31, June 30, September 30 and December 31; provided that the last fiscal quarter shall end on the date on which all Partnership Property is distributed pursuant to Section 12.02 hereof and the Certificate has been canceled pursuant to the Act.

“ Fiscal Year ” means (i) the period commencing on the Closing Date and ending on December 31, 2004, and (ii) any subsequent period commencing on January 1 and ending on the earlier to occur of (A) the following December 3l, or (B) the date on which all Partnership Property is distributed pursuant to Section 12.02 hereof and the Certificate has been canceled pursuant to the Act.

“ Form Confidentiality Agreement ” has the meaning set forth in Section 10.03(a) hereof.

“ Fourth Amended Partnership Agreement ” has the meaning set forth in Section 1.01 hereof.

“ GAAP ” means United States generally accepted accounting principles, and with respect to the Partnership, as modified by Regulations promulgated under Section 704(b) of the Code and other provisions of this Agreement, as in effect from time to time, consistently applied (except for changes concurred in by the Partnership’s independent public accountants).

“ General Partner ” means any Person who (i) is referred to as such in the introductory statement of this Agreement or has become a General Partner pursuant to the terms of this Agreement, and (ii) has not ceased to be a General Partner pursuant to the terms of this Agreement.

“ Gross Asset Value ” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

(i) The initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be the gross fair market value of such asset as determined pursuant to Section 2.03(b) hereof;

 

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(ii) The Gross Asset Values of all Partnership assets shall be adjusted to equal their respective gross fair market values as determined in accordance with Section 10.08(b)(i) in connection with the following events: (A) the acquisition of an additional interest in the Partnership by any Partner in exchange for more than a de minimis Capital Contribution; (B) the distribution by the Partnership to a Partner of more than a de minimis amount of Partnership Property as consideration for an interest in the Partnership; and (C) the liquidation of the Partnership within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);

(iii) The Gross Asset Value of any Partnership asset distributed to any Partner shall be the gross fair market value of such asset as determined in accordance with Section 10.08(b)(i) hereof (or, in the case of cash, shall be its face amount) as of the date of such distribution; and

(iv) The Gross Asset Values of Partnership assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments taken into account in determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) and subparagraph (vii) of the definition of Profits and Losses or Section 3.03(c) hereof; provided, however , that Gross Asset Values shall not be adjusted pursuant to this subparagraph (iv) to the extent that an adjustment pursuant to subparagraph (ii) is required in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (iv).

If the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (i), (ii), or (iv), such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of the allocations made pursuant to Article III hereof. For purposes of this definition of Gross Asset Value, a Capital Contribution or distribution shall be considered de minimis if its value is less than $250,000.

“ Guaranty of Payment ” means any guaranty given by Media in connection with a Media Guaranteed Demand Loan in the form attached thereto as Exhibit A .

“ Indemnitee ” has the meaning set forth in Section 5.05(e)(i) hereof.

“ Indemnitor ” has the meaning set forth in Section 5.05(e)(i) hereof.

“ Interest ” means any interest in the Partnership representing some or all of the Capital Contributions made by a Partner or its predecessor in interest pursuant to Article II hereof (or its predecessor provision), including any and all benefits to which the holder of such an interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement.

“ Investing I ” has the meaning set forth in the caption to this Agreement.

 

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“ Involuntary Bankruptcy ” has the meaning set forth in the definition of Bankruptcy.

“ Issuance Items ” has the meaning set forth in Section 3.03(d) hereof.

“ LIBOR ” has the meaning set forth in the form Demand Note.

“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the Uniform Commercial Code (as in effect from time to time in the relevant jurisdiction), or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing).

“ Limited Partner ” means any Person who (i) is referred to as such in the introductory statement of this Agreement or who has become a substituted Limited Partner pursuant to the terms of this Agreement, and (ii) has not ceased to be a Limited Partner.

“ Limited Partner Interest ” has the meaning set forth in Section 1.01 hereof.

“ Liquidating Event ” has the meaning set forth in Section 12.01 hereof.

“ Liquidator ” has the meaning set forth in Section 12.08 hereof.

“ Losses ” has the meaning set forth in the definition of Profits and Losses.

“ Market Value ” means, with respect to any Permitted Security as to any date, (i) if such security is registered under the Exchange Act and listed on a national securities exchange or included on the Nasdaq National Market (“ Nasdaq ”), the closing sales price on such date (or, in the event such date is not a Business Day, the Business Day immediately preceding such date), and (ii) if such security is not traded on a national securities exchange or listed on Nasdaq or the value otherwise cannot be determined under clause (i), the average of the firm prices bid for such date quoted by Morgan Stanley Dean Witter, Salomon Smith Barney and Credit Suisse First Boston, in each case for the full amount of the specific security for which the Market Value is being determined; provided , however , that the Market Value of any Term Note to Athenian shall be equal to the principal amount of such Note plus accrued but unpaid interest thereon, if any; provided , further , that if there has occurred and is continuing any payment or other material default with respect to any such Note at the time such value is being determined, the Mark-to-Market Value of such Note shall be determined by an investment or commercial bank of national recognition selected by the General Partner with the consent of the Limited Partner (which consent shall not be unreasonably withheld).

“ Mark-to-Market Balance Sheet ” has the meaning set forth in Section 8.02(d)(i) hereof.

 

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“ Mark-to-Market Value ” has the meaning set forth in Section 10.08(b)(i) hereof.

“ Material Adverse Effect ” with respect to each Media Partner shall mean (i) a material adverse effect on the business, operations, properties, or condition (financial or otherwise) of the Partnership, (ii) a material adverse effect on the ability of the Partnership or each of the Media Partners to perform their respective obligations hereunder and under the agreements referred to herein to which they are a party, or (iii) the invalidity or unenforceability of this Agreement or such other agreements or an assertion by the Partnership, or any such Media Partner, that this Agreement or such other agreement is invalid or unenforceable.

“ Media ” means Nielsen Media Research, Inc., a Delaware corporation, or any successor in interest by merger or otherwise.

“ Media Contribution Agreement ” means that certain Contribution Agreement, dated as of July 7, 1999, pursuant to which the software assets described therein were contributed to the Partnership by Media.

“ Media Guaranteed Demand Loan ” means a Demand Loan made by the Partnership or the Partnership Subsidiary to an Affiliate of Media, in each case guaranteed by Media.

“ Media Partners ” means the General Partner, Media and any other Affiliate of Media which may from time to time be admitted as a Partner pursuant to the terms of this Agreement.

“ Moody’s ” means Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.

“ OECD ” means the Organization for Economic Cooperation and Development.

“ Partners ” means the General Partner and the Limited Partner. “ Partner ” means any one of the Partners.

“ Partnership ” means the partnership continued pursuant to this Agreement and the partnership continuing the business of this Partnership pursuant to Section 12.01 hereof in the event of dissolution as provided in this Agreement.

“ Partnership Property ” means all real and personal property, including cash, owned by the Partnership, and any improvements thereto, and shall include both tangible and intangible property.

“ Partnership Subsidiary ” has the meaning set forth in subparagraph (ii) of the definition of Permitted Assets.

“ Partnership Subsidiary Stock ” has the meaning set forth in subparagraph (ii) of the definition of Permitted Assets.

 

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“ Percentage Interest ” means, with respect to any Partner as of any date, the ratio (expressed as a percentage) of the balance in such Partner’s Capital Account on such date to the aggregate balances in the Capital Accounts of all Partners on such date, such Capital Accounts to be determined after giving effect to all contributions, distributions and allocations for all periods ending on or prior to such date. The Percentage Interest of each Partner as of the Closing Dale is set forth in Section 2.06 hereto.

“ Permitted Assets ” means:

(i) Software Assets;

(ii) One hundred percent (100%) of the issued and outstanding stock (“ Partnership Subsidiary Stock ”) of Athenian Leasing Corporation, a Delaware corporation (the “ Partnership Subsidiary ”);

(iii) Demand Loans;

(iv) Any of the following (the “ Permitted Securities ”):

(A) Obligations of the United States government for the payment of which its full faith and credit is pledged or obligations of certain agencies of the United States government;

(B) Short-term commercial paper issued by U.S. corporations and rated at least A-1 by S&P or P-1 by Moody’s (or, in either case, the then-equivalent grade); provided that the aggregate Market Value of all commercial paper of any single issuer held by the Partnership directly or indirectly, shall not exceed 10% of the aggregate Market Value of all Permitted Securities (other than cash), owned by the Partnership, directly or indirectly;

(C) Debt of any U.S. Person, other than Media or an Affiliate of Media, rated at least AA- by S&P or Aa3 by Moody’s (or, in either case, the then-equivalent grade); provided that the aggregate Market Value of all such Debt of any single issuer held by the Partnership, directly or indirectly, shall not exceed 10% of the aggregate Market Value of all the Permitted Securities (other than cash) owned by the Partnership directly or indirectly;

(D) Unsubordinated Debt of Media or its Affiliates (guaranteed by Media);

(E) Any long-term obligation of Media or an Affiliate of Media, guaranteed by Media, to the Partnership Subsidiary, with a fixed term of no less than 15 years and a fixed or floating market rate of interest (each a “ Term Note to Athenian ”), including, without limitation, (1) that certain promissory note, dated June 11, 1998 made by Media to the order of the Partnership Subsidiary in the principal amount of $16,492,390 due

 

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June 30, 2028; (2) that certain promissory note, dated June 23, 1998 made by Media to the order of the Partnership Subsidiary in the principal amount of $25,300,000 due June 30, 2028; and (3) that certain promissory note, dated July 7, 1999 made by Media to the order of the Partnership Subsidiary in the principal amount of $25,000,000 due June 30, 2029;

(F) Money market mutual funds, provided that such funds invest only in Cash Equivalents or other Permitted Securities described in clauses (A) through (D) above, and/or repurchase agreements backed by securities described in clause (A) above;

(v) Cash or Cash Equivalents; and

(vi) Any other assets approved by all of the Partners.

“ Permitted Encumbrances ” means, collectively (i) Liens and encumbrances of carriers, warehousemen, mechanics and materialmen incurred in the ordinary course of business for sums not yet due or which are being contested in good faith by appropriate proceedings, and (ii) also refers to the fact that certain of the Software Assets may have been obtained from third parties pursuant to agreements which impose certain limitations on the use, disclosure or transfer thereof. (Copies of the form of such agreements referred to in clause (ii) have been provided to the Media Partnership or are available to Media Partnership at any time on request).

“ Permitted Securities ” has the meaning set forth in subparagraph (iv) of the definition of Permitted Assets.

“ Permitted Transfer ” has the meaning set forth in Section 10.02 hereof.

“ Permitted Transferee ” has the meaning set forth in Section 10.02 hereof.

“ Person ” means any individual, partnership (whether general or limited and whether domestic or foreign), limited liability company, corporation, trust, estate, association, custodian, nominee or other entity.

“ Profits ” and “ Losses ” means, for each Allocation Year, an amount equal to the Partnership’s taxable income or loss for such Allocation Year, determined. in accordance with Code Section 703(a) (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:

(i) Any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition of Profits and Losses shall be added to such taxable income or loss;

(ii) Any expenditures of the Partnership described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures

 

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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 of Profits and Losses shall be subtracted from such taxable income or loss;

(iii) In the event the Gross Asset Value of any Partnership asset is adjusted pursuant to subparagraphs (ii) or (iii) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Profits or Losses;

(iv) Gain or loss resulting from any disposition of Partnership Property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;

(v) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Allocation Year, computed in accordance with the definition of Depreciation;

(vi) To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(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, 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 such basis) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses; and

(vii) Notwithstanding anything to the contrary in subparagraphs (i) through (vi) above, any items which are described in Section 3.03 hereof or specially allocated pursuant to Sections 3.03 or 3.04 hereof shall not be taken into account in computing Profits or Losses.

The amounts of the items of Partnership income, gain, loss or deduction available to be specially allocated pursuant to Sections 3.03 and 3.04 hereof shall be determined by applying rules analogous to those set forth in subparagraphs (i) through (vi) above.

“ Regulations ” means the Income Tax Regulations, including Temporary Regulations, promulgated under the Code, as such regulations are amended, modified or supplemented from time to time.

“ Regulatory Allocations ” has the meaning set forth in Section 3.04 hereof.

“ Release ” means that certain Release dated as of December 31, 2003 by the Partnership in favor of Media.

“ Responsible Officers ” has the meaning set forth in Section 5.04(b) hereof.

 

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“ Retirement Date ” has the meaning set forth in Section 10.08(b)(ii) hereof.

“ Retirement Notice ” has the meaning set forth in Section 10.08(a)(ii) hereof.

“ S&P ” means Standard & Poor’s Corporation or any successor by merger or consolidation to its business.

“ Software Asset ” means the software assets leased by Media from the Partnership pursuant to the 2004 Media Lease.

“ Software Purchase Agreement ” means that certain Software Purchase Agreement dated as of December 31, 2003, pursuant to which the Partnership purchased from Media the software assets described therein.

“ Tax Matters Partner ” has the meaning set forth in Section 8.03(a) hereof.

“ Term Note to Athenian ” has the meaning set forth in subparagraph (iv) of the definition of Permitted Assets.

“ Transfer ” means, with respect to all or any portion of an Interest, as a noun, any voluntary or involuntary transfer, sale, pledge or other disposition and, as a verb, voluntarily or involuntarily to transfer, sell, pledge or otherwise dispose of.

“ Voluntary Bankruptcy ” has the meaning set forth in the definition of Bankruptcy.

“ Wholly Owned Affiliate ” of any Person means (i) an Affiliate of such Person 100% of the capital stock (or its equivalent in the case of entities other than corporations) of which is owned beneficially by such Person, directly, or indirectly through one or more Wholly Owned Affiliates, or by any Person who, directly or indirectly, owns beneficially 100% of the capital stock (or its equivalent in the case of entities other than corporations) of such Person, and (ii) an Affiliate of such Person who, directly or indirectly, owns beneficially 100% of the capital stock (or its equivalent in the case of entities other than corporations) of such Person; provided that, for purposes of determining the ownership of the capital stock of any Person, de minimis amounts of stock held by directors, nominees and similar persons pursuant to statutory or regulatory requirements shall not be taken into account.

Section 1.11. Other Terms.

Unless the content shall require otherwise:

(a) Words importing the singular number or plural number shall include the plural number and singular number respectively;

(b) Words importing the masculine gender shall include the feminine and neuter genders and vice versa

 

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(c) Reference to “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation;”

(d) Reference in this Agreement to “herein,” “hereby” or “hereunder”, or any similar formulation, shall be deemed to refer to this Agreement as a whole, including the Exhibits; and

(e) Reference to “and” and “or” shall be deemed to mean “and/or.”

ARTICLE II

PARTNERS’ CAPITAL CONTRIBUTIONS

Section 2.01. General Partner.

The name and address of the General Partner are as follows:

NMR Investing I, Inc.

801 West Street, 2d floor

Wilmington, Delaware 19801-1545

Attention: Kenneth J. Kubacki

Section 2.02. Limited Partner.

The name and address of the Limited Partner are as follows:

Nielsen Media Research, Inc.

770 Broadway

New York, New York 10003

Attention: James M. O’Hara

Section 2.03. Additional Capital Contributions.

(a) In General . Each Media Partner may contribute from time to time such additional cash or other property, as it may determine; provided that, any Capital Contribution of property made by such Partner pursuant to this Section 2.03 shall consist of Permitted Assets.

(b) Initial Gross Asset Value . The initial Gross Asset Value of any property (other than cash) contributed pursuant to this Section 2.03 shall be determined as follows:

(i) Loans . To the extent permitted by Regulations Section 1.704-1(b)(2)(iv)(b)(2), the initial Gross Asset Value of any loan shall be equal to its par value plus accrued Interest, if any;

(ii) Cash Equivalents . The initial Gross Asset Value of any Cash Equivalent shall be equal to its face value, less unamortized discount and plus unamortized premium, if any;

(iii) Permitted Securities . The initial Gross Asset Value of any Permitted Security shall be equal to its Market Value; and

 

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(iv) Other Permitted Assets . The initial Gross Asset Value of any other Permitted Asset shall be determined by the General Partner with the consent of the Limited Partner.

Section 2.04. Obligations Under Contribution Agreement.

(a) Any payment required to be made by Media pursuant to any indemnification provision of the Media Contribution Agreement shall be treated for income tax contribution to the Partnership by Media so long as Media or an Affiliate of Media is a Partner in the Partnership at the time of payment; provided, however , that (i) such payments will not be treated as a contribution for purposes of determining the Capital Account, Percentage Interest or Capital Contribution of any Partner, and (ii) to the extent that any payment is required to be made to the Partnership by Media pursuant to any indemnification provision of the Media Contribution Agreement and such payment is either indemnity for the payment by the Partnership of an item that is deductible for income tax purposes or results in an increase in the basis of any Partnership asset that is depreciable, amortizable, or subject to cost recovery, any such deduction or cost recovery allowance shall not be taken into account in determining Profits, Losses or other items of deduction or loss allocable pursuant to Article III hereof, but shall be specially allocated to Media for income tax purposes, and such special allocation shall not affect the Capital Account, Percentage Interest or Capital Contribution of any Partner.

(b) In the event any payment is required to be made by the Partnership to Media to return any payment received by it from Media pursuant to any indemnification provision of the Media Contribution Agreement, such payment shall be treated for income tax purposes as a distribution by the Partnership to Media so long as Media or an Affiliate of Media is a Partner in the Partnership at the time of receipt of payment; provided, however , that (i) such payment will not be treated as a distribution for purposes of determining the Capital Account, Percentage Interest or Capital Contribution of any Partner, and (ii) to the extent that any payment is required to be made by the Partnership to Media to return any payment received by it from Media pursuant to any indemnification provision of the Media Contribution Agreement, and such payment is indemnity for the receipt by the Partnership of an item that constitutes income for income tax purposes, such income shall not be taken into account in determining Profits, Losses or other items of income or gain allocable pursuant to Article III hereof, but shall be specially allocated to Media for income tax purposes, and such special allocation shall not affect the Capital Account, Percentage Interest or Capital Contribution of any Partner.

Section 2.05. Other Matters.

(a) Except as otherwise provided in Section 10.08, Article XII or the Act, no Partner shall demand or receive a return of its Capital Contributions or withdraw from the Partnership without the consent of all Partners. Under circumstances requiring a return of any Capital Contributions, no Partner shall have the right to receive property other than cash except as may be specifically provided in this Agreement.

(b) No Partner shall receive any interest or draw with respect to its Capital Contributions or its Capital Account, except as otherwise provided in this Agreement.

 

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(c) The Limited Partner shall not be liable for the debts, liabilities, contracts or any other obligations of the Partnership. Except as otherwise provided by mandatory provisions of applicable state law and except with respect to the obligation of the Limited Partner to return to the Partnership a distribution made to the Limited Partner in violation of the Act at a time when the Limited Partner knew the distribution would violate the Act, the Limited Partner shall be liable only to make its Capital Contribution as set forth in this Article II and shall not be required to lend any funds to the Partnership or, after its Capital Contribution has been made, to make any additional Capital Contributions to the Partnership. The General Partner shall not have any personal liability for any repayment of any Capital Contributions of the Limited Partner.

Section 2.06. Capital Accounts and Percentage Interests.

The Capital Accounts and Percentage Interests of each Partner as of the Closing Date are as follows:

 

ARTICLE III

ALLOCATIONS

Section 3.01. Profits.

After giving effect to the special allocations set forth in Sections 3.03 and 3.04 hereof, Profits for any Allocation Year shall be allocated in the following order and priority:

(a) First, 100% to the General Partner, in an amount equal to the remainder, if any, of (i) the cumulative Losses allocated to the General Partner pursuant to Section 3.02(c) hereof for all prior Allocation Years, minus (ii) the cumulative Profits allocated to the General Partner pursuant to this Section 3.01(a) for all prior Allocation Years;

(b) Second, to the Partners in proportion to and to the extent of an amount equal to the remainder, if any, of (i) the cumulative Losses allocated to each Partner pursuant to Section 3.02(b) hereof for all prior Allocation Years, minus (ii) the cumulative Profits allocated to such Partner pursuant to this Section 3.01(b) for all prior Allocation Years; and

(c) Third, the balance, if any, to the Partners in proportion to their Percentage Interests.

 

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Section 3.02. Losses.

After giving effect to the special allocations set forth in Sections 3.03 and. 3.04 hereof, Losses for any Allocation Year shall be allocated in the following order and priority, subject to the limitations in Section 3.05 hereof:

(a) First, to the Partners in proportion to and to the extent of an amount equal to the remainder, if any, of (i) the cumulative Profits allocated to each Partner pursuant to Section 3.01(c) hereof for all prior Allocation Years, minus (ii) the cumulative Losses allocated to such Partner pursuant to this Section 3.02(a) for all prior Allocation Years;

(b) Second to the Partners in proportion to their Percentage Interests until the Capital Accounts of each Partner is equal to zero; and

(c) Third, the balance, if any, 100% to the General Partner.

Section 3.03. Special Allocations.

The following special allocations shall be made in the following order:

(a) Qualified Income Offset . In the event the Limited Partner unexpectedly receives any adjustments, allocations, or distributions described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Partnership income and gain shall be specially allocated to the Limited Partner in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of the Limited Partner as quickly as possible, provided that an allocation pursuant to this Section 3.03(a) shall be made only if and to the extent that the Limited Partner would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article III have been tentatively made as if this Section 3.03(a) were not in the Agreement.

(b) Gross Income Allocation . In the event the Limited Partner has a deficit Capital Account at the end of any Allocation Year, the Limited Partner shall be specially allocated items of Partnership income and gain in the amount of such deficit as quickly as possible, provided that an allocation pursuant to this Section 3.03(b) shall be made only if and to the extent that the Limited Partner would have a deficit Capital Account after all other allocations provided for in this Article III have been made as if Section 3.03(a) hereof and this Section 3.03(b) were not in the Agreement.

(c) Section 754 Adjustments . To the extent an adjustment to the adjusted 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)(2) or 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as the result of a distribution to a Partner in complete liquidation of its Interest, 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 accordance with their interests in the Partnership in the event Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Partner to whom such distribution was made in the event Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.

 

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(d) Allocations Relating to Taxable Issuance of Partnership Interests . Any income, gain, loss or deduction realized as a direct or indirect result of the issuance of an Interest by the Partnership to a Partner other than pursuant to Code Section 707(a)(2) (the “ Issuance Items ”) shall be allocated among the Partners so that, to the extent possible, the net amount of such Issuance Items, together with all other allocations under this Agreement to each Partner, shall be equal to the net amount that would have been allocated to each such Partner if the Issuance Items had not been realized.

Section 3.04. Curative Allocations.

The allocations set forth in Sections 3.03(a), 3.03(b), 3.03(c) and 3.05 hereof (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 shall be offset either with other Regulatory Allocations or with special allocations of other items of Partnership income, gain, loss or deduction pursuant to this Section 3.04. Therefore, notwithstanding any other provision of this Article III (other than the Regulatory Allocations), the General Partner shall make such offsetting special allocations of Partnership income, gain, loss or deduction in whatever manner it determines appropriate so that, 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 this Article III without regard to the Regulatory Allocations.

Section 3.05. Loss Limitation.

The Losses allocated pursuant to Section 3.02 hereof and the items of loss or deduction allocated pursuant to Sections 3.03 and 3.04 hereof shall not exceed the maximum amount of Losses and items of loss or deduction that can be so allocated without causing the Limited Partner to have an Adjusted Capital Account Deficit at the end of any Allocation Year. All Losses and items of loss or deduction in excess of the limitation set forth in this Section 3.05 shall be allocated to the General Partner.

Section 3.06. Other Allocation Rules.

(a) Profits, Losses and any other items of income, gain, loss or deduction shall be allocated to the Partners pursuant to this Article III as of the last day of each Fiscal Year; provided that Profits, Losses and such other items shall also be allocated at such times as are required by Section 10.08(b) hereof and at such other times as the Gross Asset Values of Partnership Property are adjusted pursuant to subparagraph (ii) of the definition of Gross Asset Value in Section 1.10 hereof.

(b) In any cases in which it is necessary to determine 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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(c) The Partners hereby agree to be bound by the provisions of this Article III in reporting their shares of Partnership income and loss for income tax purposes, except to the extent otherwise required by law.

Section 3.07. Tax Allocations: Code Section 704(c).

In accordance with Code Section 704(c) and the applicable 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 Gross Asset Value (computed in accordance with the definition of Gross Asset Value in Section 1.10 hereof).

In the event the Gross Asset Value of any Partnership asset is adjusted pursuant to subparagraph (iv) of the definition of Gross Asset Value in Section 1.10 hereof, 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 Gross Asset Value in the same manner as under Code Section 704(c) and the applicable Regulations thereunder.

Any elections or other decisions relating to such allocations shall be made by the General Partner in any manner that reasonably reflects the purpose and intention of this Agreement, including the election of an allocation method permitted by the Regulations under Code Section 704(c). Allocations pursuant to this Section 3.07 are solely for purposes of 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.

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 Allocation Year.

ARTICLE IV

DISTRIBUTIONS

Section 4.01. Cash Flow.

Except as otherwise provided in Section 4.02, Section 10.08 and Article XII hereof, distributions to the Partners shall be made at such times and in such amounts as shall be determined by the General Partner.

Section 4.02. Amounts Withheld.

All amounts withheld or required to be withheld pursuant to the Code or any provision of any state, local or foreign tax law with respect to any payment, distribution or allocation to the Partnership or the Partners and treated by the Code (whether or not withheld pursuant to the Code) or any such tax law as amounts payable by or in respect of the Partners or any Person

 

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owning an interest, directly or indirectly, in such Partner shall be treated as amounts paid or distributed to the Partners with respect to which such amount was withheld pursuant to this Article IV for all purposes under this Agreement.

ARTICLE V

MANAGEMENT

Section 5.01. Authority of the General Partner.

Subject to the limitations and restrictions set forth in this Agreement including without limitation those set forth in this Article V, the General Partner shall direct the business and affairs of the Partnership and in so doing shall manage, control and have all the rights and powers which may be possessed by general partners under the Act.

Section 5.02. Right to Rely on the General Partner.

(a) Any Person dealing with the Partnership may rely (without due of further inquiry) upon a certificate signed by the General Partner as to:

(i) The identity of the General Partner or the Limited Partner;

(ii) The existence or nonexistence of any fact or facts which constitute a condition precedent to acts by the General Partner or which are in any other manner germane to the affairs of the Partnership;

(iii) The Persons who are authorized to execute and deliver any instrument or document of the Partnership; or

(iv) Any act or failure to act by the Partnership or any other matter whatsoever involving the Partnership or any Partner.

(b) The signature of the General Partner shall be sufficient to convey title to any property owned by the Partnership, and