Agreement of Limited Partnership - D&B Investors LP
AMENDED AND RESTATED
AGREEMENT OF
LIMITED PARTNERSHIP
Of
D&B INVESTORS L.P.,
A Delaware Limited Partnership
By and Among
DUNS INVESTING VII CORPORATION
DUN & BRADSTREET, INC.
DUNS HOLDING, INC.
UTRECHT-AMERICA FINANCE CO.
AND
LEIDEN, INC.
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TABLE OF CONTENTS
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ARTICLE I
THE PARTNERSHIP..............................1
SECTION 1.01. Formation...............................................1
SECTION 1.02. Name....................................................1
SECTION 1.03. Purpose.................................................1
SECTION 1.04. Principal Place of Business.............................2
SECTION 1.05. Term....................................................2
SECTION 1.06. Filings; Agent for Service of Process...................2
SECTION 1.07. Title to Partnership Property...........................2
SECTION 1.08. Payments of Individual Obligations......................3
SECTION 1.09. Independent Activities; Transactions with Affiliates....3
SECTION 1.10. Definitions.............................................4
SECTION 1.11. Other Terms............................................19
ARTICLE II
PARTNERS' CAPITAL CONTRIBUTIONS.....................20
SECTION 2.01. General Partner........................................20
SECTION 2.02. Limited Partners.......................................20
SECTION 2.03. Additional Capital Contributions.......................21
SECTION 2.04. Other Matters..........................................22
ARTICLE III
ALLOCATIONS...............................23
SECTION 3.01. Profits................................................23
SECTION 3.02. Losses.................................................24
SECTION 3.03. Special Loss Allocation................................24
SECTION 3.04. Other Special Allocations..............................25
SECTION 3.05. Curative Allocations...................................26
SECTION 3.06. Loss Limitation........................................26
SECTION 3.07. Other Allocation Rules.................................26
SECTION 3.08. Tax Allocations: Code Section 704(c)..................27
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ARTICLE IV
DISTRIBUTIONS..............................28
SECTION 4.01. Cash Flow..............................................28
SECTION 4.02. Amounts Withheld.......................................28
ARTICLE V
MANAGEMENT................................28
SECTION 5.01. Authority of the General Partner.......................28
SECTION 5.02. Right to Rely on the General Partner...................28
SECTION 5.03. Restrictions on Authority of the General Partner.......29
SECTION 5.04. Duties and Obligations of the General Partner..........31
SECTION 5.05. Indemnification of the Partners........................32
SECTION 5.06. Compensation and Expenses..............................34
ARTICLE VI
ROLE OF LIMITED PARTNERS.........................35
SECTION 6.01. Rights or Powers.......................................35
SECTION 6.02. Voting Rights..........................................35
SECTION 6.03. Procedure for Consent..................................35
ARTICLE VII
REPRESENTATIONS AND WARRANTIES......................35
SECTION 7.01. In General.............................................35
SECTION 7.02. Representations and Warranties.........................35
ARTICLE VIII
ACCOUNTING; BOOKS AND RECORDS......................38
SECTION 8.01. Accounting; Books and Records..........................38
SECTION 8.02. Reports................................................39
SECTION 8.03. Tax Matters............................................41
SECTION 8.04. Proprietary Information................................42
ARTICLE IX
AMENDMENTS; MEETINGS...........................42
SECTION 9.01. Amendments.............................................42
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SECTION 9.02. Meetings of the Partners...............................42
SECTION 9.03. Unanimous Consent......................................43
ARTICLE X
TRANSFERS OF INTERESTS..........................43
SECTION 10.01. Restriction on Transfers..............................43
SECTION 10.02. Permitted Transfers...................................43
SECTION 10.03. Conditions to Permitted Transfers.....................44
SECTION 10.04. Prohibited Transfers..................................45
SECTION 10.05. Rights of Unadmitted Assignees........................45
SECTION 10.06. Admission as Substituted Partners.....................46
SECTION 10.07. Distributions with Respect to Transferred Interests...46
SECTION 10.08. Retirement of Class A Limited Partners' Interests
in the Partnership; Determination of Mark-to-Market
Values and Gross Asset Values.......................47
ARTICLE XI
GENERAL PARTNER.............................49
SECTION 11.01. Covenant Not to Withdraw, Transfer, or Dissolve.......49
SECTION 11.02. Termination of Status as General Partner..............49
SECTION 11.03. Election of New General Partners......................50
ARTICLE XII
DISSOLUTION AND WINDING UP........................50
SECTION 12.01. Liquidating Events....................................50
SECTION 12.02. Winding Up............................................51
SECTION 12.03. Restoration of Deficit Capital Accounts; Compliance
With Timing Requirements of Regulations.............52
SECTION 12.04. Deemed Distribution and Recontribution................53
SECTION 12.05. Rights of Partners....................................54
SECTION 12.06. Notice of Dissolution.................................54
SECTION 12.07. Liquidation Guaranteed Payment........................54
SECTION 12.08. Character of Liquidating Distributions................54
SECTION 12.09. The Liquidator........................................54
SECTION 12.10. Form of Liquidating Distributions.....................55
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ARTICLE XIII
POWER OF ATTORNEY............................55
SECTION 13.01. General Partner as Attorney-In-Fact...................55
SECTION 13.02. Nature of Special Power...............................56
ARTICLE XIV
NOTICE EVENTS..............................56
SECTION 14.01. Notice Events.........................................56
SECTION 14.02. Liquidation Notice....................................57
SECTION 14.03. Electing Partners' Purchase Option....................57
ARTICLE XV
MISCELLANEOUS..............................58
SECTION 15.01. Notices...............................................58
SECTION 15.02. Binding Effect........................................59
SECTION 15.03. Construction..........................................59
SECTION 15.04. Headings..............................................59
SECTION 15.05. Severability..........................................59
SECTION 15.06. Variation of Pronouns.................................59
SECTION 15.07. Governing Law.........................................60
SECTION 15.08. Waiver of Action for Partition........................60
SECTION 15.09. Waiver of Jury Trial..................................60
SECTION 15.10. Consent to Jurisdiction...............................60
SECTION 15.11. Counterpart Execution.................................60
SECTION 15.12. Sole and Absolute Discretion..........................60
SECTION 15.13. Specific Performance..................................60
EXHIBITS
EXHIBIT A - Contribution Agreement
EXHIBIT B - Form Demand Note and Guaranty of Payment
EXHIBIT C - Form Confidentiality Certificate
EXHIBIT D-1 - Form Transferor Certificate
EXHIBIT D-2 - Form Transferee Certificate
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
D&B INVESTORS L.P.,
A DELAWARE LIMITED PARTNERSHIP
This AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is entered into
and shall be effective as of the 1st day of April, 1997, by and among Duns
Investing VII Corporation, a Delaware corporation ("Investing"), as the General
Partner, Utrecht-America Finance Co., a Delaware corporation ("Utrecht"), and
Leiden, Inc., a Delaware corporation ("Leiden"), as the Class A Limited
Partners, and Dun & Bradstreet, Inc., a Delaware corporation ("DBI"), and Duns
Holding, Inc., a Delaware corporation ("Holding"), as the Class B Limited
Partners.
ARTICLE I
THE PARTNERSHIP
SECTION 1.01. Formation. The Partnership was formed on October 14, 1993.
The Partners 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 that certain Agreement of Limited Partnership of D&B Investors L.P.,
a Delaware limited partnership entered into on October 14, 1993 and amended to
date (the "Original Partnership Agreement"). Simultaneously with the execution
of this Agreement, DBI hereby withdraws as a general partner and is admitted as
a Class B Limited Partner, Investing hereby withdraws as a limited partner and
is admitted as the General Partner, Leiden is hereby admitted as a Class A
Limited Partner and Holding is hereby admitted as a Class B Limited Partner.
SECTION 1.02. Name. The name of the Partnership shall continue to be D&B
Investors L.P., a Delaware limited partnership, and all business of the
Partnership shall continue to 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 ten (10) Business Days 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 and to manage,
protect and conserve such investments in Permitted Assets and to make such
additional investments and engage in such additional business endeavors as are
permitted under this Agreement, and 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
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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 911 Washington Street, Suite 100,
Wilmington, Delaware 19801, Attention: Kenneth J. Kubacki. 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 Partners. The registered office of the Partnership in the State of
Delaware is located at 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.
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 any General Partner and by each Person designated in the
amendment as a new General Partner.
(b) The registered agent for service of process on the Partnership in the
State of Delaware shall be 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 12.09) 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
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property for all purposes. The Partnership shall hold all of its property in the
name of the Partnership and 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.
(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 Contribution Agreement, D&B
Loans, D&B Guaranteed Loans, and the Lease Agreement satisfy this independent
third-party standard and the Partners hereby authorize the General Partner to
cause the Partnership to enter into the documents referenced in this Section
1.09(c).
(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
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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 any
Limited Partner being deemed to be participating in the control of the business
of the Partnership or otherwise affect the limited liability of any Limited
Partner.
SECTION 1.10. Definitions. Capitalized words and phrases used in this
Agreement have the following meanings:
"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.
"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:
(i) Credit to such Capital Account any amounts which such
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 to 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.
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"Agreement" means this 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, 1997, (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 (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.
"Alternative Appraiser" means any of the "Big Six" accounting firms
(including appraisal divisions thereof or successors thereto), Valuation
Research Corp., Arthur D. Little, Inc., American Appraisal Valuation
Research, American Appraisal Associates Inc., Valuation Counselors Inc.,
Software Productivity Research, Stephen C. Gerard (including any firm with
which he is associated), or with the consent of all Partners, any firm
recommended by any of the foregoing Alternative Appraisers.
"Applicable Margin" means, as of the determination date for LIBOR
with respect to any Loan, the Applicable Rate for a Eurocurrency Revolving
Loan on such date, in each case, as defined in, and determined in
accordance with the provisions of, the D&B Credit Facility. .
"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 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
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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(d)(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, 3.04 or 3.05.
(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, 3.04 or 3.05.
(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 provisions of this Agreement relating to the maintenance of
Capital Accounts are intended to comply with Section 1.704-1(b) of the
Regulations, and they shall be interpreted and applied in a manner
consistent with such Regulations.
"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 Available for Distribution" for any Fiscal Quarter means the
gross cash proceeds of the Partnership less the portion thereof used to
pay or establish reasonable reserves for all Partnership expenses
(including, without limitation, taxes), all as determined by the General
Partner. "Cash Available for Distribution" will not be reduced by
depreciation, depletion, amortization, cost recovery deduction, or similar
allowances, and will be increased by any reductions of reserves previously
established pursuant to the first sentence of this definition.
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"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 obligations
unconditionally guaranteed by the full faith and credit of the Government
of the United States, or (ii) insured 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 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
A-2 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 A-2 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.
"Class A 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 Class A Limited Partner pursuant to the terms of this
Agreement, and (ii) has not ceased to be a Class A Limited Partner.
"Class B 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 Class B Limited Partner pursuant to the terms of this
Agreement, and (ii) has not ceased to be a Class B Limited Partner.
"Closing Date" means April 1, 1997.
"Closing Date Capital Account" means, with respect to each Partner,
the Capital Account balance stated for such Partner in Section 2.01 or
2.02 as the case may be.
"Code" means the Internal Revenue Code of 1986, as amended, modified
or supplemented from time to time, or any successor legislation.
"Computer Equipment" has the meaning set forth in paragraph (vii) of
the definition of "Permitted Assets."
"Contribution Agreement" means the Contribution Agreement between
Holding on the one hand, and the Partnership on the other hand, attached
hereto as Exhibit A.
"D&B" means The Dun & Bradstreet Corporation, a Delaware
corporation.
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"D&B Credit Facility" means that certain $1,000,000,000 Credit
Agreement, dated as of August 30, 1996 among D&B, the Borrowing
Subsidiaries party thereto, the Lenders party thereto, The Chase Manhattan
Bank, as Administrative Agent, Citibank, N.A., as Syndication Agent, and
Morgan Guaranty Trust Company of New York, as Documentation Agent, as it
may be amended, modified, supplemented, substituted or refinanced from
time to time.
"D&B Event" has the meaning set forth in the D&B Guaranty of even
date herewith given by D&B in favor of the Class A Limited Partners.
"D&B Guaranteed Loan" means a Loan made by the Partnership or a
Partnership Subsidiary to an Affiliate of D&B in each case guaranteed by
D&B.
"D&B Loan" means a Loan made by the Partnership or a Partnership
Subsidiary to D&B.
"D&B Partners" means Investing, DBI and Holding and any other
Affiliate of D&B which may from time to time own an Interest hereunder.
"Demand Note" means any promissory note evidencing a Loan in the
form attached hereto as Exhibit B.
"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 (x) with respect to any asset whose Gross
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 ss. 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 ss.
1.704-3(d)(2) of the Regulations; and (y) 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 of 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.
"Early Liquidation Date" has the meaning set forth in the definition
of "Early Liquidation Premium."
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"Early Liquidation Premium" means, with respect to each Class A
Limited Partner, an amount determined for such Partner as of any date
occurring prior to the fourth anniversary of the Closing Date on which (w)
the Partnership is liquidated pursuant to Article XII, (x) such Partner's
Interest is retired in whole or in part pursuant to Section 10.08 or (y)
the Interest of such Class A Limited Partner is purchased pursuant to
Section 14.03 (the "Early Liquidation Date"), equal to the excess, if any,
of (i) the present value of the deemed quarterly distributions to be made
to such Class A Limited Partner on the last business day of each Fiscal
Quarter equal to 7.47% of such Class A Limited Partner's Unrecovered
Capital as of the Early Liquidation Date during the period beginning on
the Early Liquidation Date and ending on such fourth anniversary, minus
(ii) the present value of a series of amounts defined by the product of
(A) such Class A Limited Partner's Unrecovered Capital as of the Early
Liquidation Date multiplied times (B) a percentage that will be defined by
the sum of (1) the sum of (a) the bid side of the Treasury yield plus (b)
the bid side of the interbank swap spread, in each case best approximating
the period between the Early Liquidation Date and ending on such fourth
anniversary, plus (2) 50 basis points, the present value determined under
subparagraph (i) and the present value determined under subparagraph (ii)
each to be calculated using the sum of (X) the bid side of the Treasury
yield, plus (Y) the bid side of the interbank swap spread, in each case
best approximating the period between the Early Liquidation Date and
ending on such fourth anniversary as the discount rate.
"Electing Partners" has the meaning set forth in Section 14.03(a).
"Election Date" has the meaning set forth in Section 14.03(a).
"Election Notice" has the meaning set forth in Section 14.03(a).
"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 June 30, 1997, 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 and the
Certificate has been canceled pursuant to the Act.
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"Fiscal Year" means (i) the period commencing on the Closing Date
and ending on December 31, 1997, and (ii) any subsequent period commencing
on January 1 and ending on the earlier to occur of (A) the following
December 31, or (B) the date on which all Partnership Property is
distributed pursuant to Section 12.02 and the Certificate has been
canceled pursuant to the Act.
"Form Confidentiality Agreement" has the meaning set forth in
Section 10.03(a).
"Form Transferee Certificate" has the meaning set forth in Section
10.03(f).
"Form Transferor Certificate" has the meaning set forth in Section
10.03(f).
"GAAP" means United States generally accepted accounting principles
as in effect from time to time, consistently applied.
"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 value of such asset
as determined pursuant to Section 2.03(b); provided that the initial
Gross Asset Values of the assets contributed to the Partnership
pursuant to Section 2.02 shall be as set forth in such Section;
(ii) The Gross Asset Values of all Partnership assets shall be
adjusted to equal their respective gross 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 value of such asset as
determined in accordance with Section 10.08(b)(i) (or, in the case
of cash, shall be its face amount) as of the date of such
distribution; and
<PAGE> 16
11
(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 are 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 3.04(c); 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. 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 $1,000,000.
"Guaranty of Payment" means any guaranty given by D&B in connection
with a D&B Guaranteed Loan in the form attached hereto as Exhibit B.
"Indebtedness" 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 any accounts payable, 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,
provided that Indebtedness shall not include obligations in respect of any
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.
"Indemnitee" has the meaning set forth in Section 5.05(f)(i).
"Indemnitor" has the meaning set forth in Section 5.05(f)(i).
"Interest" means any interest in the Partnership representing some
or all of the Capital Contributions made by a Partner pursuant to Article
II, including any and all benefits to which the holder of such an interest
may be entitled as provided in this
<PAGE> 17
12
Agreement, together with all obligations of such Person to comply with the
terms and provisions of this Agreement.
"Involuntary Bankruptcy" has the meaning set forth in the definition
of Bankruptcy.
"Issuance Items" has the meaning set forth in Section 3.04(d).
"Lease Agreement" means that certain Software and Database Lease
Agreement dated of even date herewith, between the Partnership and DBI,
pursuant to which the Software and Databases are licensed to DBI.
"Leiden" means Leiden, Inc., a Delaware corporation.
"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 Class A Limited Partner or Class B
Limited Partner.
"Liquidating Event" has the meaning set forth in Section 12.01.
"Liquidation Notice" has the meaning set forth in Section 14.02(a).
"Liquidator" has the meaning set forth in Section 12.09.
"Loan" means a loan that is made by the Partnership or a Partnership
Subsidiary to, and at all times the obligor under which is, D&B or any
Affiliate of D&B and the obligations of D&B with respect to which rank at
all times at least pari passu with all other senior unsecured Indebtedness
of D&B, provided that each such loan (i) is payable on demand, (ii) bears
interest at a floating rate (based on 1-month, 3-month, 6-month or
12-month LIBOR) plus the Applicable Margin, (iii) is denominated in U.S.
dollars, and (iv) is evidenced by a Demand Note including a Guaranty of
Payment by D&B in the event that the loan is made to any Affiliate of D&B.
"Losses" has the meaning set forth in the definition of "Profits"
and "Losses."
<PAGE> 18
13
"Mark-to-Market Balance Sheet" has the meaning set forth in Section
8.02(d)(i).
"Mark-to-Market Value" has the meaning set forth in Section
10.08(b)(i).
"Market Value" means with respect to any Permitted Security as to
any date (i) if a Permitted Security is registered under the Exchange Act
and listed on a national securities exchange or included on the National
Association of Securities Dealers Automated Quotation System, 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 a Permitted 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 & Co. Incorporated, Salomon Brothers Inc.
and The First Boston Corporation, in each case for the full amount of the
specific security for which the Market Value is being determined.
"Material Adverse Effect" with respect to each D&B 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
D&B 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 D&B Partner, that this
Agreement or such other agreement is invalid or unenforceable or has an
adverse effect on the rights or remedies of any Class A Limited Partner
under this Agreement or such other agreements. "Material Adverse Effect"
with respect to any Class A Limited Partner shall mean (i) a material
adverse effect on the business, operations, properties, or condition
(financial or otherwise) of such Class A Limited Partner, (ii) a material
adverse effect on the ability of such Class A Limited Partner to perform
its obligations hereunder and under the agreements referred to herein to
which it is a party or (iii) the invalidity or unenforceability of this
Agreement or such other agreements or an assertion by such Class A Limited
Partner that this Agreement or such other agreement is invalid or
unenforceable or an adverse effect on the rights or remedies of the D&B
Partners under this Agreement or such other agreement.
"Moody's" means Moody's Investors Service, Inc. or any successor by
merger or consolidation to its business.
"Notice Events" has the meaning set forth in Section 14.01.
"OECD" means the Organization for Economic Cooperation and
Development.
"Original Partnership Agreement" has the meaning set forth in
Section 1.01 hereof.
<PAGE> 19
14
"Partners" means the General Partner and the Limited Partners.
"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 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" means either Partnership Subsidiary I or
Partnership Subsidiary II.
"Partnership Subsidiary I" has the meaning set forth in paragraph
(ii) of the definition of "Permitted Assets."
"Partnership Subsidiary II" has the meaning set forth in paragraph
(iii) of the definition of "Permitted Assets."
"Partnership Subsidiary I Stock" has the meaning set forth in
paragraph (ii) of the definition of "Permitted Assets."
"Partnership Subsidiary II Stock" has the meaning set forth in
paragraph (iii) of the definition of "Permitted Assets."
"Percentage Interest" means, with respect to any Partner as of any
date, the ratio (expressed as a percentage) of such Partner's Capital
Account on such date to the aggregate 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 Allocation Years
ending on or prior to such date. The initial Percentage Interest of each
Partner is set forth in Sections 2.01 and 2.02. In the event that it is
necessary to determine the relative Percentage Interests of the Partners
at a time when the Capital Accounts of all Partners are zero or less,
their relative Percentage Interests shall be deemed to be the Percentage
Interests set forth in Section 2.01 and 2.02.
"Permitted Assets" means:
(i) The Software and Databases contributed to the Partnership
by Holding pursuant to Section 2.02;
<PAGE> 20
15
(ii) One hundred percent (100%) of the issued and outstanding
stock ("Partnership Subsidiary I Stock") of Duns Investing
Corporation, a Delaware corporation (the "Partnership Subsidiary
I");
(iii) One hundred percent (100%) of the issued and outstanding
stock ("Partnership Subsidiary II Stock") of the corporation formed
by the Partnership pursuant to Section 5.04(i) (the "Partnership
Subsidiary II");
(iv) D&B Loans and D&B Guaranteed Loans;
(v) Cash or Cash Equivalents;
(vi) Permitted Securities; and
(vii) The computers and related equipment owned by the
Partnership on the Closing Date (the "Computer Equipment").
"Permitted Encumbrances" means, collectively, (i) "Permitted
Encumbrances" as defined in the Contribution Agreement, and (ii) 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.
"Permitted Securities" means any of the following:
(i) Direct obligations of the United States of America for the
payment of which its full faith and credit is pledged, Federal Home
Loan Mortgage Corporation participation certificates, Federal
National Mortgage Association mortgage pass-through certificates or
Government National Mortgage Association mortgage pass-through
certificates;
(ii) Short-term commercial paper issued by any corporation
organized under the laws of the United States of America or any
state thereof, rated at least "A-1" by S&P; provided that the
aggregate Market Value of all commercial paper owned by the
Partnership and issued by any Person shall not exceed 10% of the
aggregate Market Value of all Permitted Securities (other than cash)
owned by the Partnership;
(iii) Indebtedness of any Person organized under the laws of
the United States of America or any state thereof that is not D&B or
an Affiliate of D&B, rated at least "AA" by S&P; provided, that the
aggregate Market Value of all such indebtedness owned by the
Partnership and issued by any Person shall not exceed 10% of the
aggregate Market Value of all Permitted Securities (other than cash)
owned by the Partnership;
<PAGE> 21
16
(iv) Unsubordinated debt issued by D&B or unsubordinated debt
issued by an Affiliate of D&B if (and only if) such debt is
unconditionally guaranteed by D&B on an unsubordinated basis (other
than D&B Loans and D&B Guaranteed Loans); provided, that D&B has
agreed to register such debt under the Securities Act upon the
request of the holder of such debt and such agreement inures to the
benefit of any subsequent holder of such debt; or
(v) Money market mutual funds, provided that, any such money
market fund invests only in Cash Equivalents and/or Permitted
Securities described in any of subparagraphs (i) through (iv) above
and/or repurchase agreements backed by securities described in
subparagraph (i) above, and provided further that, the aggregate
value of the Permitted Securities described in this subparagraph (v)
and held by the Partnership at any given time does not exceed
$15,000,000.
"Permitted Transfer" has the meaning set forth in Section 10.02.
"Permitted Transferee" has the meaning set forth in Section 10.02.
"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.
"Priority Return" means, with respect to each Class A Limited
Partner as of any date of determination, an amount calculated as the sum
of (x) 7.47% per annum, accruing daily on a 30/360 basis and cumulative
from the Closing Date to such date of determination, of such Class A
Limited Partner's Unrecovered Capital on each such day of accrual, and (y)
8.47% per annum accruing daily on a 30/360 basis and cumulative from the
Closing Date to such date of determination, and compounded quarterly, of
each amount not distributed to such Class A Limited Partner (or its
predecessor in interest) when required pursuant to Section 4.02(a)
(without regard to whether there was on any given distribution date Cash
Available for Distribution) or Section 10.08(b)(ii) during the period from
the date such distribution was thus required to be made to the date such
distribution is made, or if such distribution is not yet made, to the date
of determination. In each instance where this Agreement requires that the
Priority Return be determined for a period less than the period beginning
on the Closing Date and ending on the date of determination, such
determination shall be made by substituting the first day of such lesser
period for the Closing Date in the preceding sentence. For purposes of
calculating the Priority Return, "30/360 day basis" means a 360-day year
comprised of twelve 30 day months.
"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
<PAGE> 22
17
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 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 or specially allocated pursuant to Sections 3.04 or
3.05 shall not be taken into account in computing Profits or Losses.
<PAGE> 23
18
The amounts of the items of Partnership income, gain, loss or deduction
available to be specially allocated pursuant to Sections 3.03, 3.04 and
3.05 shall be determined by applying rules analogous to those set forth in
subparagraphs (i) through (vi) above.
"Purchase Date" has the meaning set forth in Section 8.02(e).
"Purchase Option" has the meaning set forth in Section 14.03(a).
"Purchase Price" has the meaning set forth in Section 14.03(b).
"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 3.05.
"Responsible Officers" has the meaning set forth in Section 5.04(b).
"Retirement Date" has the meaning set forth in Section
10.08(b)(iii).
"Retirement Notice" has the meaning set forth in Section
10.08(a)(ii).
"S&P" means Standard & Poor's Corporation or any successor by merger
or consolidation to its business.
"Secondary Return" means, with respect to the General Partner and
each Class B Limited Partner as of any date of determination, an amount
equal to 10% per annum, accruing daily on a 30/360 basis and cumulative
and compounded quarterly from the Closing Date to such date of
determination, of such Partner's Unrecovered Capital on each such day of
accrual. In each instance where this Agreement requires that the Secondary
Return be determined for a period less than the period beginning on the
Closing Date and ending on the date of determination, such determination
shall be made by substituting the first day of such lesser period for the
Closing Date in the preceding sentence. For purposes of calculating the
Secondary Return, "30/360 day basis" means a 360-day year comprised of
twelve 30 day months.
"Software and Databases" means the assets contributed to the
Partnership by Holding pursuant to Section 2.02.
"Tax Matters Partner" has the meaning set forth in Section 8.03(a).
<PAGE> 24
19
"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.
"Unrecovered Capital" means, for any Partner as of any date, the
remainder, if any, of (i) the sum of the balance in such Partner's Closing
Date Capital Account as set forth in Section 2.01 or 2.02, as the case may
be, plus all Additional Capital Contributions made by such Partner, minus
(ii) the cumulative amount of money and the Gross Asset Value of any
Partnership Property (other than money) distributed to such Partner (or
its predecessors in interest) pursuant to Section 10.08(b) (other than
pursuant to Section 10.08(b)(ii)) as of such date.
"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;
(c) Reference to "include," "includes," and "including" shall
be deemed to be followed by the phrase "without limitation;"
<PAGE> 25
20
(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. Simultaneously with the execution and
delivery of this Agreement, the General Partner shall make the Capital
Contribution listed below, provided that, all Capital Contributions to be made
in cash shall be made on the first Business Day after the Closing Date. The
name, address, the initial Percentage Interest and balance in the General
Partner's Capital Account immediately after making its Capital Contribution
pursuant to this Section 2.01 are as follows:
<TABLE>
<CAPTION>
Initial
Capital Contribution/ Percentage
Name and Address Capital-Account Interest
------------------------------ ---------------------------------- ----------
<S> <C> <C>
Duns Investing VII Corporation Cash in an amount equal to 1%
911 Washington Street $8,519,792, resulting in a Closing
Suite 100 Date Capital Account equal to
Wilmington, Delaware 19801 $8,551,713.
Attention: Kenneth J. Kubacki
</TABLE>
SECTION 2.02. Limited Partners. Simultaneously with the execution and
delivery of this Agreement, the Limited Partners shall make the Capital
Contributions listed below, provided that, all Capital Contributions to be made
in cash shall be made on the first Business Day after the Closing Date. The
name, address, the initial Percentage Interest of each of the Limited Partners
and the balance in each Limited Partner's Capital Account immediately after
making its Capital Contribution pursuant to this Section 2.02 are as follows:
<PAGE> 26
21
<TABLE>
<CAPTION>
Initial
Capital Contribution/ Percentage
Name and Address Capital-Account Interest
------------------------------ ---------------------------------- ----------
<S> <C> <C>
Duns Holding, Inc. Software and Databases with an 62.92%
911 Washington Street aggregate initial Gross Asset
Suite 250 Value equal to $523,458,000;
Wilmington, Delaware 19801 Partnership Subsidiary I Stock
Attention: Kenneth J. Kubacki with an initial Gross Asset Value
Facsimile: (302) 428-1410 equal to $1,000, and cash in an
amount equal to $14,577,000, each
contributed to the Partnership
pursuant to the Contribution
Agreement, resulting in a Closing
Date Capital Account balance equal
to $538,036,000
Dun & Bradstreet, Inc. Cash in an amount equal to 1%
One Diamond Hill Road $5,423,469, resulting in a
Murray Hill, New Jersey 07974 Closing Date Capital Account
Attention: Robert J. Levin equal to $8,551,713
Facsimile: (908) 665-1409
Utrecht-America Finance Co. Cash in an amount equal to 1%
c/o Utrecht-America Financial $8,519,792, resulting in a
Services Corp. Closing Date Capital Account
245 Park Avenue equal to $8,551,713
New York, NY 10167
Attention: Treasurer
Leiden, Inc. Cash in an amount equal to 34.08%
c/o Utrecht-America Financial $291,480,208, resulting in a
Services Corp. Closing Date Capital Account
245 Park Avenue equal to $291,480,208
New York, NY 10167
Attention: Treasurer
</TABLE>
SECTION 2.03. Additional Capital Contributions. (a) In general. Each D&B
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.
The Partners agree that any additional payment required to be made, or expense
incurred, by Holding pursuant to the Contribution Agreement
<PAGE> 27
22
after the Closing Date, including any expense incurred in complying with Section
5.06 thereof, has been taken into account in determining the initial Gross Asset
Value of the Software and Databases and shall not constitute an additional
Capital Contribution to the Partnership.
(b) Initial Gross Asset Value. The initial Gross Asset Value of any
Partnership Property (other than cash) contributed pursuant to this Section 2.03
shall be determined as follows:
(i) Loans. The initial Gross Asset Value of any Loan shall be equal
to its par value;
(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; and
(iii) Permitted Securities. The initial Gross Asset Value of any
Permitted Security shall be equal to its Market Value.
SECTION 2.04. Other Matters. (a) Except as otherwise provided in Section
10.08, Articles XII and XIV or in 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.
(c) The Limited Partners 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 any Limited Partner to return to the Partnership a
distribution made to such Limited Partner in violation of the Act at a time when
such Limited Partner knew the distribution would violate the Act, such Limited
Partner shall be liable only to make its Capital Contribution as set forth in
Section 2.02 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 any Limited
Partner.
<PAGE> 28
23
ARTICLE III
ALLOCATIONS
SECTION 3.01. Profits. After giving effect to the special allocations set
forth in Sections 3.04 and 3.05, but before giving effect to the special
allocations set forth in Section 3.03, Profits for any Allocation Year shall be
allocated in the following order and priority:
(a) First, 100% to the Class A Limited Partners in proportion to and to
the extent of an amount equal to the remainder, if any, of (i) the cumulative
Priority Return of each Class A Limited Partner from the Closing Date to the
last day of such Allocation Year, minus (ii) the cumulative Profits allocated to
such Class A Limited Partner pursuant to this Section 3.01(a) for all prior
Allocation Years;
(b) Second, 100% to the Class A Limited Partners in proportion to and to
the extent of an amount equal to the remainder, if any, of (i) the sum of (A)
the cumulative Losses allocated to each Class A Limited Partner pursuant to
Section 3.02(d) for all prior Allocation Years, and (B) the cumulative items of
loss allocated to such Class A Limited Partner pursuant to Section 3.03(d) for
all prior Allocation Years, minus (ii) the cumulative Profits allocated to such
Class A Limited Partner pursuant to this Section 3.01(b) for all prior
Allocation Years;
(c) Third, 100% to the General Partner in an amount equal to the
remainder, if any, of (i) the sum of (A) the cumulative Losses allocated to the
General Partner pursuant to Section 3.02(e) for all prior Allocation Years, and
(B) the cumulative items of loss allocated to the General Partner pursuant to
Section 3.03(e) for all prior Allocation Years, minus (ii) the cumulative
Profits allocated to the General Partner pursuant to this Section 3.01(c) for
all prior Allocation Years;
(d) Fourth, to the Partners in proportion to and to the extent of an
amount equal to the remainder, if any, of (i) the sum of (A) the cumulative
Losses allocated to each Partner pursuant to Section 3.02(c) for all prior
Allocation Years, and (B) the cumulative items of loss allocated to such Partner
pursuant to Section 3.03(c) for all prior Allocation Years, minus (ii) the
cumulative Profits allocated to such Partner pursuant to this Section 3.01(d)
for all prior Allocation Years;
(e) Fifth, to the General Partner and the Class B Limited Partners in
proportion to and to the extent of an amount equal to the remainder, if any, of
(i) the sum of (A) the cumulative Secondary Return of each such Partner from the
Closing Date to the last day of such Allocation Year, and (B) the cumulative
Losses allocated to such Partner pursuant to Section 3.02(b) for all prior
Allocation Years, and (C) the cumulative items of loss allocated to such Partner
pursuant to Section 3.03(b) for all prior Allocation Years, minus (ii) the
cumulative Profits allocated to such Partner pursuant to this Section 3.01(e)
for all prior Allocation Years; and
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24
(f) Sixth, the balance, if any, 99% to the General Partner and the Class B
Limited Partners in proportion to their Percentage Interests and 1% to the Class
A Limited Partners in proportion to their Percentage Interests.
SECTION 3.02. Losses. After giving effect to the special allocations set
forth in Sections 3.04 and 3.05, but before giving effect to the special
allocations set forth in Section 3.03, Losses for any Allocation Year shall be
allocated in the following order and priority, subject to the limitations in
Section 3.06:
(a) First, to the Partners in proportion to and to the extent of the
remainder, if any, of (i) the cumulative Profits allocated to each Partner
pursuant to Section 3.01(f) for all prior Allocation Years, minus (ii) the sum
of (A) the cumulative items of loss allocated to such Partner pursuant to
Section 3.03(a) for all prior Allocation Years, and (B) the cumulative Losses
allocated to such Partner pursuant to this Section 3.02(a) for all prior
Allocation Years;
(b) Second, to the General Partner and the Class B Limited Partners in
proportion to and to the extent of the remainder, if any, of (i) the cumulative
Profits allocated to each such Partner pursuant to Section 3.01(e) for all prior
Allocation Years, minus (ii) the sum of (A) the cumulative items of loss
allocated to such Partner pursuant to Section 3.03(b) for all prior Allocation
Years, and (B) the cumulative Losses allocated to such Partner pursuant to this
Section 3.02(b) for all prior Allocation Years;
(c) Third, 99% to the General Partner and the Class B Limited Partners in
proportion to their Percentage Interests and 1% to the Class A Limited Partners
in proportion to their Percentage Interests until the Capital Account of the
General Partner and each Class B Limited Partner is equal to zero;
(d) Fourth, 100% to the Class A Limited Partners in proportion to their
Percentage Interests until the Capital Account of each Class A Limited Partner
is equal to zero; and
(e) Fifth, the balance, if any, 100% to the General Partner.
SECTION 3.03. Special Loss Allocation. After giving effect to the special
allocations set forth in Sections 3.04 and 3.05 and the allocations of Profits
or Losses set forth in Sections 3.01 or 3.02, as the case maybe, in the event
that in any Allocation Year the aggregate items of loss realized or deemed to be
realized by the Partnership from the sale, disposition or adjustment to the
Gross Asset Values of Permitted Assets is greater than the aggregate items of
gain realized or deemed to be realized by the Partnership from the sale,
disposition or adjustment to the Gross Asset Values of Permitted Assets, items
of loss equal to such excess shall be specially allocated as follows:
(a) First, to the Partners in proportion to and to the extent of the
remainder, if any, of (i) the cumulative Profits allocated to each Partner
pursuant to Section 3.01(f) for the current
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and all prior Allocation Years, minus (ii) the sum of (A) the cumulative Losses
allocated to such Partner pursuant to Section 3.02(a) for the current and all
prior Allocation Years, and (B) the cumulative items of loss allocated to such
Partner pursuant to this Section 3.03(a) for all prior Allocation Years;
(b) Second, to the General Partner and the Class B Limited Partners in
proportion to and to the extent of the remainder, if any, of (i) the cumulative
Profits allocated to each such Partner pursuant to Section 3.01(e) for the
current and all prior Allocation Years, minus (ii) the sum of (A) the cumulative
Losses allocated to such Partner pursuant to Section 3.02(b) for the current and
all prior Allocation Years, and (B) the cumulative items of loss allocated to
such Partner pursuant to this Section 3.03(b) for all prior Allocation Years;
(c) Third, 99% to the General Partner and the Class B Limited Partners in
proportion to their Percentage Interests and 1% to the Class A Limited Partners
in proportion to their Percentage Interests until the Capital Account of the
General Partner and each Class B Limited Partner is equal to zero;
(d) Fourth, 100% to the Class A Limited Partners in proportion to their
Percentage Interests until each Class A Limited Partner's Capital Account is
equal to zero; and
(e) Fifth, the balance, if any, 100% to the General Partner.
SECTION 3.04. Other Special Allocations. The following special allocations
shall be made in the following order:
(a) Qualified Income Offset. In the event any 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 such Limited Partner in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, the Adjusted Capital
Account Deficit of such Limited Partner as quickly as possible; provided that an
allocation pursuant to this Section 3.04(a) shall be made only if and to the
extent that such 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 3.04(a) were not in the Agreement.
(b) Gross Income Allocation. In the event any Limited Partner has a
deficit Capital Account at the end of any Allocation Year, such 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 3.04(b) shall be made only if and to the extent that such Limited
Partner would have a deficit Capital Account after all other allocations
provided for in this Article III have been made as if Section 3.04(a) and this
Section 3.04(b) were not in the Agreement.
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(c) 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)(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.
(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
Section 707(a)(2) of the Code (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 3.05. Curative Allocations. The allocations set forth in Sections
3.04(a), 3.04(b), 3.04(c) and 3.06 (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 3.05. 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, 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 this Article III without regard to the
Regulatory Allocations.
SECTION 3.06. Loss Limitation. The Losses allocated pursuant to Section
3.02 and the items of loss or deduction allocated pursuant to Sections 3.03,
3.04 and 3.05 shall not exceed the maximum amount of Losses and items of loss or
deduction that can be so allocated without causing any 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 3.06 shall be allocated to the General Partner.
SECTION 3.07. 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) and at such other times as the Gross
<PAGE> 32
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Asset Values of Partnership Property are adjusted pursuant to subparagraph (ii)
of the definition of Gross Asset Value in Section 1.10.
(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.
(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 3.08. 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).
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, 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 3.08 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.
<PAGE> 33
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ARTICLE IV
DISTRIBUTIONS
SECTION 4.01. Cash Flow. Except as otherwise provided in Article XII and
Section 4.02(a), Cash Available for Distribution shall be distributed on the
last Business Day of each Fiscal Quarter commencing with June 30, 1997, 100% to
the Class A Limited Partners in proportion to and to the extent of an amount
equal to the remainder, if any, of (i) the cumulative Priority Return of each
Class A Limited Partner from the Closing Date to the last Business Day of the
Fiscal Quarter during which such distribution is made, minus (ii) all prior
distributions to such Class A Limited Partner pursuant to this Section 4.01(a).
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 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 of
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 duty of further inquiry) upon a
certificate signed by the General Partner as to:
(i) The identity of the General Partner or any 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
<PAGE> 34
29
(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 all of the Partners agree
that a copy of this Agreement may be shown to the appropriate parties in order
to confirm the same, and further agree that the signature of the General Partner
shall be sufficient to execute any "statement of partnership" or other documents
necessary to effectuate this or any other provision of this Agreement. All of
the Partners do hereby appoint the General Partner as their attorney-in-fact for
the execution of any or all of the documents described in this Section 5.02(b).
SECTION 5.03. Restrictions on Authority of the General Partner. Except as
otherwise provided in this Agreement, without the consent of all of the Limited
Partners, the General Partner shall not have the authority to, and covenants and
agrees that it shall not:
(a) Knowingly, do any act in contravention of this Agreement or, when
acting on behalf of the Partnership, engage in activities inconsistent with the
purposes of the Partnership;
(b) Do any act which would, to the General Partner's knowledge, make it
impossible to carry on the ordinary business of the Partnership;
(c) Possess Partnership Property, or assign rights in specific Partnership
Property, for other than a Partnership purpose;
(d) Perform any act that would, to the General Partner's knowledge,
subject any Limited Partner to liability as a general partner in any
jurisdiction;
(e) Cause or permit the Partnership or any Partnership Subsidiary to
voluntarily take any action with respect to the Partnership described in clauses
(a)(iii), (b) or (c) of the definition of Bankruptcy in Section 1.10;
(f) Cause or permit the Partnership or any Partnership Subsidiary to
incur, assume or obligate itself by contract for any Indebtedness or to create,
incur, assume or permit to exist any Lien upon any Partnership Property other
than Permitted Encumbrances, provided that, in the event that the General
Partner has elected pursuant to Section 10.08(a) to cause the entire Interests
of the Class A Limited Partners to be retired, the General Partner may cause the
Partnership to borrow the funds necessary to make the distributions to the Class
A Limited Partners required by Section 10.08(b), and provided further that, in
the event that the General Partner has elected pursuant to Section 10.08(a) to
cause all or any portion of the Interests of the Class A Limited Partners to be
retired, the General Partner may cause the Partnership to borrow from any
Partnership Subsidiary the funds necessary to make the distributions to the
Class A Limited Partners required by Section 10.08(b);
<PAGE> 35
30
(g) Cause or permit the Partnership or any Partnership Subsidiary to
acquire, by purchase, lease or contribution any assets other than Permitted
Assets or any Permitted Asset that is in default at the time of its acquisition
by the Partnership;
(h) Cause or permit the Partnership or any Partnership Subsidiary to make
or acquire by contribution any Loan unless (i) the borrowing evidenced by such
Loan has been duly authorized by all required corporate action, such action has
been duly certified by the secretary or an assistant secretary of the borrower,
and such certification has been delivered to the Partnership together with
certificates as to incumbency and due authorization of the officers of the
borrower authorized to execute and deliver such Loan (which certified action may
be one so taken and certification may be one so delivered before that
acquisition if the certified action remains in effect at the time of, and is
applicable to, that acquisition), (ii) such Loan is legal, valid, binding and
enforceable in accordance with its terms against the borrower, (iii) the
guaranty by D&B with respect to such Loan, if any, (A) has been duly authorized
by all required corporate action, such action has been duly certified by the
secretary or an assistant secretary of D&B, and such certification has been
delivered to the Partnership together with certificates as to incumbency and due
authorization of the officers of D&B authorized to execute and deliver such
guaranty (which certified action may be one so taken and certification may be
one so delivered before that acquisition if the certified action remains in
effect at the time of, and is applicable to, that acquisition), and (B) is
legal, valid, binding and enforceable in accordance with its terms against D&B
and (iv) D&B's obligations thereunder or under any guaranty with respect
thereto, as the case may be, rank at least pari passu with all other unsecured
senior Indebtedness of D&B;
(i) Cause or permit the admission of any Limited Partner to the
Partnership other than pursuant to Article X or Section 14.03;
(j) Cause or permit the Partnership or any Partnership Subsidiary to
legally merge or consolidate with or into any corporation, limited liability
company, business trust or association, real estate investment trust, common law
trust, or unincorporated business (including a partnership, whether general or
limited);
(k) Cause the Partnership to distribute any asset other than as provided
in Article IV, Section 10.08 and Article XII;
(l) Cause or permit the Partnership or any Partnership Subsidiary to
utilize the Software and Databases or grant to any Person other than DBI
pursuant to the Lease Agreement the right to access the Software and Databases,
in each case in order to develop, distribute or market products, other than
Minor Permitted Uses (as defined in the Lease Agreement); and
(m) Cause or permit the Partnership or any Partnership Subsidiary to enter
into, permit or consent to any amendment or modification of, or supplement to,
or terminate or waive compliance with any provision of, the Lease Agreement, any
Demand Note evidencing any Loan or the Contribution Agreement.
<PAGE> 36
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SECTION 5.04. Duties and Obligations of the General Partner. (a) The
General Partner shall cause the Partnership to conduct its business and
operations separate and apart from that of any D&B Partner or any of its
Affiliates, including, without limitation, (i) segregating Partnership assets
and not allowing funds or other assets of the Partnership to be commingled with
the funds or other assets of, held by, or registered in the name of, any D&B
Partner or any of its Affiliates, (ii) maintaining books and financial records
of the Partnership separate from the books and financial records of any D&B
Partner and its Affiliates (although the Partnership may be consolidated with
D&B and its Affiliates for financial reporting statement purposes), and
observing all Partnership procedures and formalities, including, without
limitation, maintaining minutes of Partnership meetings and acting on behalf of
the Partnership only pursuant to due authorization of the Partners, (iii)
causing the Partnership to pay its liabilities from assets of the Partnership,
and (iv) causing the Partnership to conduct its dealings with third parties in
its own name and as a separate and independent entity.
(b) On the Closing Date, the General Partner shall provide to the
Partnership a written statement naming those officers of the General Partner
that will be responsible for the management and operations of the Partnership in
accordance with this Article V (such individuals, the "Responsible Officers"),
until such time as the General Partner has provided to the Partnership another
written statement naming other officers as Responsible Officers, and the General
Partner hereby covenants and agrees that its Responsible Officers shall maintain
the separateness of the Partnership's operations and otherwise comply with all
of the terms of this Agreement.
(c) The General Partner shall notify the Partners of the occurrence of any
Notice Event described in Section 14.01 or any Liquidating Event described in
Section 12.01 or any event which with notice or lapse of time or both would
constitute a Notice Event or Liquidating Event (other than the events described
in Sections 12.01(a) and 14.01(a)) and the action which the General Partner has
taken or proposes to take with respect thereto, promptly, but no later than five
(5) Business Days, after any Responsible Officer has actual knowledge of such
occurrence.
(d) The General Partner shall take all actions which may be necessary or
appropriate (i) for the continuation of the Partnership's valid existence as a
limited partnership and its qualification to do business under the laws of the
State of Delaware and of each other jurisdiction in which such existence or
qualification is necessary to protect the limited liability of the Limited
Partners or to enable the Partnership to conduct the business in which it is
engaged or to perform its obligations under any agreement to which it is a
party, and (ii) for the accomplishment of the Partnership's purposes, including
the acquisition, management, maintenance, preservation, and operation of
Permitted Assets in accordance with the provisions of this Agreement and
applicable laws and regulations. Without limitation of the foregoing, the
General Partner shall cause the Partnership and each Partnership Subsidiary to
maintain all licenses, permits, registrations, authorizations, use agreements,
consents, orders or approvals of governmental or quasi-governmental agencies and
authorities (whether Federal, state, local, municipal or foreign) necessary to
own their respective properties and to conduct their respective activities in
<PAGE> 37
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accordance with all applicable laws, rules, regulations and orders, except where
any failure to do so would not have a Material Adverse Effect.
(e) The General Partner shall devote to the Partnership such time as may
be necessary for the proper performance of all duties under this Agreement.
(f) Except as otherwise provided in Section 1.09 hereof, the General
Partner shall be under a fiduciary duty to conduct the affairs of the
Partnership in the best interests of the Partnership, including, without
limitation, the safekeeping and use of all of the Partnership Property and the
use thereof for the exclusive benefit of the Partnership and will not conduct
the affairs of the Partnership so as to benefit any other business now owned or
hereafter acquired by any Partner if such conduct also produces a detriment to
the Partnership.
(g) All distributions or payments to the Partners pursuant to any
provision of this Agreement shall be made no later than 11:00 a.m., Eastern
Standard Time, on the day of distribution or payment, and, at the time of any
such distribution or payment, the General Partner shall provide to the Partners
a notice identifying the nature of the distribution or payment, the Section or
Sections of this Agreement pursuant to which it is being made and the amount
being distributed or paid pursuant to each such Section.
(h) On the first Business Day after the Closing Date, the General Partner
shall cause the Partnership to contribute $330,712,330 to Partnership Subsidiary
I and shall cause Partnership Subsidiary I to loan $320,712,330 to D&B or an
Affiliate of D&B pursuant to a D&B Loan or a D&B Guaranteed Loan, as the case
may be, and invest $10,000,000 in Permitted Securities.
(i) As soon as practicable after the Closing Date, the General Partner
shall cause the Partnership to contribute all of the Computer Equipment to a
newly formed Delaware corporation in exchange for 100% of its issued and
outstanding stock.
(j) As soon as practicable after the end of each Fiscal Quarter, the
General Partner shall cause the Partnership to contribute to Partnership
Subsidiary I cash in an amount equal to Cash Available for Distribution for such
Fiscal Quarter reduced by distributions made by the Partnership during such
Fiscal Quarter.
SECTION 5.05. Indemnification of the Partners. (a) Unless otherwise
provided in Section 5.05(e) and subject to Section 5.05(f), the Partnership, its
receiver or its trustee (in the case of its receiver or trustee, to the extent
of Partnership Property) shall indemnify, save harmless, and pay all Expenses of
any Partner, any Partner's partner, any partners, stockholders, officers,
directors, employees or agents of any of them relating to any Expenses incurred
by reason of any act performed or omitted to be performed by any Partner, or
officer, director, employee or agent of any Partner in connection with the
business of the Partnership.
<PAGE> 38
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(b) Unless otherwise provided in Section 5.05(e) and subject to Section
5.05(f), in the event of any action by any Limited Partner against the General
Partner or officer or director of the General Partner, including a Partnership
derivative suit, the Partnership, its receiver or its trustee (in the case of a
receiver or trustee, to the extent of Partnership Property) shall indemnify,
save harmless, and pay all Expenses of the General Partner, officer or director
incurred in the defense of such action; provided that the General Partner,
officer or director obtains a favorable final nonappealable judgment in such
action.
(c) All indemnities provided for in this Agreement shall survive the
transfer of a Partner's Interest.
(d) The Partnership and the General Partner, jointly and severally,
covenant and agree, unconditionally, absolutely and irrevocably, to indemnify
and hold harmless each Class A Limited Partner from and against any and all
Expenses arising out of or in connection with or by reason of any Person's
assertion that the liabilities, debts or other obligations of the Partnership
are liabilities, debts or other obligations of such Class A Limited Partner;
provided, however, that no such indemnification shall be required hereunder for
any such Expenses resulting from any action taken by such Class A Limited
Partner which exposes such Class A Limited Partner to liability as a general
partner under Delaware law.
(e) Sections 5.05(a), 5.05(b), 5.05(c) and 5.05(d) shall be enforced only
to the maximum extent permitted by law and no Partner shall be indemnified from
any liability for the fraud, willful misconduct, bad faith, or gross negligence
of itself or any of its Affiliates.
(f) Indemnification Procedures.
(i) In the event any claim is made by a third party against the
General Partner, any Limited Partner, or any affiliate, officer, director,
agent, employee, successor or assign of any of them (each of them being
referred to as an "Indemnitee"), with respect to an actual or potential
liability for which any such Person is otherwise entitled to be
indemnified under any provisions of Sections 5.05(a), 5.05(b), 5.05(c) and
5.05(d), and any such Person wishes to be indemnified with respect
thereto, such Person shall promptly notify the appropriate indemnitor(s)
as provided in each such section (the "Indemnitor"); provided that the
failure of any such Person to notify any Indemnitor shall not relieve such
Indemnitor from any liability which it otherwise may have to such Person
hereunder.
(ii) Each Indemnitee may by notice to the Indemnitor take control of
all aspects of the investigation and defense of all claims asserted
against it and may employ counsel of its choice and at the expense of the
Indemnitor; provided that (A) the amount of any settlement such Indemnitee
may enter into must be consented to by the Indemnitor and no Indemnitee
may in connection with any such investigation, defense or settlement,
without the consent of the Indemnitor, require the Indemnitor or any of
its subsidiaries to take or refrain from taking any action (other than
payment of such a settlement amount) or to
<PAGE> 39
34
make any public statement, which such Person reasonably considers to
materially adversely affect its interest, and (B) such Indemnitee may not
take control of any investigation, defense or settlement which could
entail a risk of criminal liability to the Indemnitor or any of its
subsidiaries. Upon the request of the Indemnitor, each Indemnitee shall
use its best efforts to keep the Indemnitor reasonably apprised of the
status of those aspects of such investigation and defense controlled by
such Indemnitee and shall provide such information with respect thereto as
the Indemnitor may reasonably request. The Indemnitor shall cooperate with
the Indemnitee in all reasonable respects with respect thereto.
(iii) Any Indemnitor may, by notice to the Indemnitees, take control
of all aspects of the investigation and defense of all claims asserted
against it, and may employ counsel of its choice and at its expense;
provided that (A) no Indemnitor may without the consent of any Indemnitee
agree to any settlement that requires such Indemnitee to make any payment
that is not indemnified hereunder, or does not grant a general release to
such Indemnitee, and in any event such Indemnitor may not in connection
with any such investigation, defense or settlement, without the consent of
any Indemnitee, take or refrain from taking any action which would
reasonably be expected to materially impair the indemnification of such
Indemnitee hereunder or would require such Indemnitee to take or refrain
from taking any action or to make any public statement, which such Person
reasonably considers to materially adversely affect its interests, (B) no
Indemnitor may take control of any investigation, defense or settlement,
without the consent of any Indemnitee, if the liabilities involved in such
proceedings involve any material risk of the sale, forfeiture or loss of,
or the creation of any Lien on, any property of such Indemnitee and (C) no
Indemnitor may take control of any investigation, defense or settlement
which could entail a risk of criminal liability to any Indemnitee. Upon
the request of any Indemnitee, the Indemnitor shall use its best efforts
to keep such Indemnitee reasonably apprised of the status of those aspects
of such investigation and defense controlled by such Indemnitor and shall
provide such information with respect thereto as such Indemnitee may
reasonably request. The Indemnitees shall cooperate with the Indemnitor in
all reasonable respects with respect thereto.
SECTION 5.06. Compensation and Expenses. (a) Compensation and
Reimbursement. Except as otherwise provided in Sections 1.09(c) and this Section
5.06, no Partner or Affiliate of any Partner shall receive any salary, fee, or
draw for services rendered to or on behalf of the Partnership or otherwise in
its capacity as a Partner, nor shall any Partner or Affiliate of any Partner be
reimbursed for any expenses incurred by such Partner or Affiliate on behalf of
the Partnership or otherwise in its capacity as a Partner.
(b) Management Fee. For services rendered to or on behalf of the
Partnership in satisfaction of its duties and obligations under this Agreement,
the General Partner shall be paid $500,000 per annum, quarterly in arrears, pro
rata for any partial Fiscal Quarter.
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35
(c) Expenses. The General Partner may charge the Partnership, and shall be
reimbursed, for any reasonable out-of-pocket expenses incurred in connection
with the Partnership's business.
ARTICLE VI
ROLE OF LIMITED PARTNERS
SECTION 6.01. Rights or Powers. The Limited Partners shall not have any
right or power to take part in the management or control of the Partnership or
its business and affairs or to act for or bind the Partnership in any way.
Notwithstanding the foregoing, the Limited Partners shall have all the rights
and powers specifically set forth in this Agreement. A Limited Partner, any
Affiliate thereof or an employee, stockholder, agent, director or officer of a
Limited Partner or any Affiliate thereof, may also be an employee or agent of
the Partnership or a stockholder, director or officer of the General Partner.
The existence of these relationships and acting in such capacities will not
result in a Limited Partner being deemed to be participating in the control of
the business of the Partnership or otherwise affect the limited liability of any
Limited Partner.
SECTION 6.02. Voting Rights. The Limited Partners shall have the right to
vote only on those matters specifically reserved for its vote (or a vote of the
Partners) which are set forth in this Agreement and as required by the Act.
SECTION 6.03. Procedure for Consent. In any circumstances requiring the
approval or consent of any Limited Partner specified in this Agreement, such
approval or consent may, except as expressly provided to the contrary in this
Agreement, be given or withheld in the sole and absolute discretion of such
Limited Partner. If the General Partner receives the necessary approval or
consent of the Limited Partners to such action, the General Partner shall be
authorized and empowered to implement such action without further authorization
by any Limited Partner.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.01. In General. As of the Closing Date, each of the Partners
hereby makes each of the representations and warranties applicable to such
Partner as set forth in Section 7.02, and such representations and warranties
shall survive the execution of this Agreement.
SECTION 7.02. Representations and Warranties. (a) Due Formation or
Incorporation; Authorization of Agreement. Each Partner hereby represents and
warrants that such Partner is a corporation or a partnership, as the case may
be, duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation as a partnership, as the case may
be, and has the partnership or corporate power and authority to own its property
and
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carry on its business as owned and carried on at the Closing Date. Each D&B
Partner hereby represents and warrants that such Partner is duly licensed or
qualified to do business and is in good standing in each of the jurisdictions in
which the failure to be so licensed or qualified would have a Material Adverse
Effect. Each Class A Limited Partner hereby represents and warrants that such
Partner is duly licensed or qualified to do business and in good standing in
each of the jurisdictions in which it would be required to be so licensed or
qualified without regard to its being a Limited Partner in the Partnership and
in which the failure to so qualify would have a Material Adverse Effect. Each
Partner hereby represents and warrants that such Partner has the corporate or
partnership power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. Each Partner hereby represents and warrants
that the execution, delivery and performance by such Partner of this Agreement
has been duly authorized by all necessary corporate or partnership action. Each
Partner hereby represents and warrants that this Agreement constitutes the
legal, valid and binding obligation of such Partner and is enforceable against
such Partner in accordance with its terms.
(b) No Conflict with Restrictions; No Default. Each Partner hereby
represents and warrants that neither the execution and delivery by such Partner
of this Agreement nor such Partner's performance and compliance with the terms
and provisions hereof (i) will conflict with, violate or result in a breach of
any of the terms, covenants, conditions or provisions of any law or governmental
regulation in effect on the date hereof applicable to, or any order, writ,
injunction, decree, determination or award of any court, governmental
department, board, agency or instrumentality, domestic or foreign, or arbitrator
directed to or binding on such Partner which conflict, violation or breach would
have a Material Adverse Effect, (ii) will conflict with, violate, result in a
breach of or constitute a default under any agreement or instrument to which
such Partner is a party or by which such Partner is or may be bound or to which
any of its properties or assets is subject which conflict, violation, breach or
default would have a Material Adverse Effect, or any of the terms or provisions
of the organizational documents or by-laws of such Partner, (iii) will conflict
with, violate, result in a breach of, constitute a default under (whether with
notice or lapse of time or both), accelerate or permit the acceleration of the
performance required by, or require any consent, authorization or approval under
any of the terms or provisions of any material indenture, mortgage, lease,
agreement or instrument to which such Partner is a party or by which such
Partner or such Partner's property or assets is or may be bound, or (iv) will
result in the creation or imposition of any material lien upon any of the
properties or assets of such Partner.
(c) Governmental Authorizations. Each Partner hereby represents and
warrants that no material registration, declaration or filing with, or consent,
approval, license, permit or other authorization or order by, any governmental
or regulatory authority, domestic or foreign, is required in connection with the
valid execution, delivery and performance by such Partner of this Agreement.
(d) Litigation.
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(i) Each D&B Partner hereby represents and warrants that (A) there
are no actions, suits, proceedings or investigations pending or, to the
knowledge of such Partner, threatened against or affecting such Partner or
any of its respective properties, assets, rights or businesses, in any
court or before or by any governmental department, board, agency or
instrumentality, domestic or foreign, or any arbitrator which would (or,
in the case of an investigation, could lead to any action, suit or
proceeding, which would) reasonably be expected to impair such Partner's
ability to perform its obligations under this Agreement or to have a
Material Adverse Effect or bring into question the validity of this
Agreement or the transactions contemplated hereby; and (B) such D&B
Partner has not received any currently effective notice of any default,
and such Partner is not in default, under any applicable order, writ,
injunction, decree, permit, determination or award of any court, any
governmental department, board, agency or instrumentality, domestic or
foreign, or any arbitrator which would reasonably be expected to impair
its ability to perform its obligations under this Agreement or to have a
Material Adverse Effect.
(ii) Each Class A Limited Partner hereby represents and warrants
that there is no action, suit, proceeding or investigation pending or, to
the knowledge of such Partner, threatened against or affecting such
Partner which seeks to question, delay or prevent the consummation of the
transactions contemplated hereby.
(e) Investment Company Act; Public Utility Holding Company Act. Each
Partner hereby represents and warrants that (i) neither such Partner nor, as a
result of the Partner's ownership of its Interest, is the Partnership an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended and (ii) such Partner is not a "holding company," an "affiliate of a
holding company," or a "subsidiary of a holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935, as
amended.
(f) Subsidiary. Each of Investing, DBI and Holding hereby represents and
warrants that 100% of the capital stock of such Partner is owned, directly or
indirectly, by D&B.
(g) Investigation; Intent. Each Partner hereby represents and warrants
that (i) such Partner is acquiring its Partnership Interest based upon its own
investigation, and the exercise by such Partner of its rights and the
performance of its obligations under this Agreement will be based upon its own
investigation, analysis and expertise, (ii) its acquisition of its Partnership
Interest is being made for its own account for investment, and not with a view
to the sale or distribution thereof, and (iii) it intends to form a partnership
for the purpose of making an economic profit from the transactions proposed to
be entered into by the Partnership.
(h) Capitalization of Class A Limited Partners. Each Class A Limited
Partner hereby represents and warrants that at all times that it is a Partner
such Class A Limited Partner shall satisfy each of the following requirements:
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38
(i) It shall not be an Affiliate of D&B;
(ii) It shall be capitalized with not less than three percent (3%)
equity and:
(A) Such equity shall be subordinate to all outstanding debt
of such Class A Limited Partner;
(B) Such equity shall not be funded with non-recourse debt
that is collateralized by a pledge of such equity;
(C) If funded with recourse debt, the owner of such equity
shall have other assets whose value is at least equal to the value
of such equity;
(D) Such equity shall not be backed by a letter of credit; and
(E) Such equity shall not be the subject of residual insurance
or a residual guaranty, in either case that ensures recovery of such
equity; and
(iii) Such Class A Limited Partner shall not make distributions in
excess of its earnings determined in accordance with GAAP or pay fees in
respect of the structuring of the transactions contemplated by this
Agreement or pay costs incurred in connection with such transactions, in
each case to the owners of its equity.
(i) Transaction Fees. Each D&B Partner hereby represents and warrants that
neither it nor any of its Affiliates shall pay any fees or other amounts to any
Class A Limited Partner in respect of the transactions contemplated by this
Agreement other than a fee to be paid by D&B to Utrecht on the first Business
Day after the Closing Date and any amounts to be paid or distributed to the
Class A Limited Partners pursuant to this Agreement.
ARTICLE VIII
ACCOUNTING; BOOKS AND RECORDS
SECTION 8.01. Accounting; Books and Records. (a) Maintenance of Books and
Records. The Partnership shall maintain at its principal place of business or,
upon notice to the Partners, at such other place as the General Partner shall
determine, separate books of account for the Partnership which shall include a
record of all costs and expenses incurred, all charges made, all credits made
and received, and all income derived in connection with the conduct of the
Partnership and the operation of its business in accordance with this Agreement.
<PAGE> 44
39
(b) Accounting Methods.
(i) The Partnership shall use the accrual method of accounting in
preparation of its annual reports and for tax purposes and shall keep its
books and records accordingly.
(ii) All amounts payable under any agreement between the Partnership
on the one hand and the Partners or their Affiliates on the other hand
shall be treated as occurring between the Partnership and a Person who is
not a Partner within the meaning of Section 707(a)(1) of the Code and such
amounts payable by the Partnership to any Partner or its Affiliates shall
be considered an expense or capital cost, as the case may be, of the
Partnership for income tax and financial reporting purposes, and shall not
be considered a distribution to such Partner including, without
limitation, in maintaining such Partner's Capital Account, and any such
amounts payable by any Partner or its Affiliates to the Partnership shall
not be considered a contribution to the Partnership, including, without
limitation, in maintaining such Partner's Capital Account.
(c) Access to Books, Records, etc. Subject to Section 8.04, any Partner or
any agents or representatives of such Partner, at the Partner's own expense and
upon reasonable notice and with reasonable frequency, may examine any
information it may reasonably request and make copies of and abstracts from the
financial and operating records and books of account of the Partnership, and
discuss the affairs, finances and accounts of the Partnership with the General
Partner and its Responsible Officers, directors, officers and independent
accountants of the Partnership, all at such reasonable times and as often as
such Partner or any agents or representatives of such Partner may reasonably
request. The rights granted to a Partner pursuant to this Section 8.01 are
expressly subject to compliance by such Partner with the confidentiality
procedures and guidelines of the Partnership, as such procedures and guidelines
may be established from time to time.
SECTION 8.02. Reports. (a) In General. The General Partner shall be
responsible for the preparation of financial reports of the Partnership and the
coordination of financial matters of the Partnership with the Partnership's
accountants. Each report delivered by the Partnership to the Partners pursuant
to this Article VIII shall be accompanied by a representation of a Responsible
Officer of the General Partner familiar with the affairs of the Partnership that
(x) such report has been prepared and fairly stated in all material respects in
accordance with GAAP, or to the extent inconsistent therewith, in accordance
with this Agreement, and (y) no Liquidating Event or Notice Event, or event
which with notice or lapse of time or both would constitute a Liquidating Event
or Notice Event (other than the Liquidating Event described in Section 12.01(a)
or the Notice Event described in Section 14.01(a)) has occurred and is
continuing or if any such event has occurred and is continuing, the action that
the General Partner has taken or proposes to take with respect thereto.
(b) Annual Reports. Within 120 days after the end of each Fiscal Year, the
General Partner shall cause to be prepared and each Partner to be furnished with
the following:
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(i) A balance sheet as of the last day of such Fiscal Year and an
income statement and statement of cash flows for the Partnership for such
Fiscal Year and notes associated with each; and
(ii) A statement of the Partners' Capital Accounts and changes
therein for such Fiscal Year.
(c) Quarterly Reports. Within sixty (60) days after the close of each
Fiscal Quarter beginning with the Fiscal Quarter ending June 30, 1997, the
General Partner shall cause to be prepared and each Partner shall be furnished
with a balance sheet as of the last day of such Fiscal Quarter and an income
statement and a statement of cash flows for the Partnership for such Fiscal
Quarter and the notes associated with each.
(d) Retirement/Liquidation Date Reports. On the date on which any
distribution is made pursuant to Section 10.08(b) in retirement of all or any
portion of any Class A Limited Partner's Interest and on the date on which final
distributions are made to the Partners pursuant to Section 12.02, the General
Partner shall cause to be prepared and each Partner furnished with each of the
following statements:
(i) A balance sheet as of the date of such distribution setting
forth the aggregate Mark-to-Market Values for each of the following as
individual line items: the Software and Databases, all Loans held by the
Partnership and each Partnership Subsidiary, all Permitted Securities held
by the Partnership and each Partnership Subsidiary and all Cash
Equivalents (a "Mark-to-Market Balance Sheet"); and
(ii) A statement of the Partners' Capital Accounts as adjusted
immediately prior to such distribution (x) in the case of distribution
pursuant to Section 10.08(b), pursuant to Section 3.07 and Section
10.08(b), and (y) in the case of a distribution pursuant to Section 12.02,
pursuant to Section 3.07 and Section 12.02.
(e) Purchase Option Reports. The General Partner shall cause to be
prepared and all Partners furnished with a statement of the Partners' Capital
Accounts and a Mark-to-Market Balance Sheet (x) in the case of the exercise of
the Purchase Option after delivery of a Liquidation Notice as a result of the
occurrence of the Notice Event described in Section 14.01(a), on the fourth
anniversary of the Closing Date, and setting forth the Mark-to-Market Values of
the Permitted Assets as of such fourth anniversary, and (y) in all other cases,
not later than the sixtieth (60th) day after the Election Date, and setting
forth the Mark-to-Market Values of the Permitted Assets as of the date of
delivery of such Mark-to-Market Balance Sheet (the date of delivery of the
Mark-to-Market Balance Sheet pursuant to clause (x) or (y), the "Purchase
Date").
For purposes of this Section 8.02(e), the Partners' Capital Accounts shall
be determined in accordance with Section 3.07 as of the Purchase Date taking
into account (x) the adjustments to the Gross Asset Values of the Partnership's
Property that would result from a determination
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of the value of the Partnership's Property in accordance with Section
10.08(b)(i) as of the Purchase Date, and (y) the allocation to the Partners'
Capital Accounts that would result from an allocation pursuant to Article III of
the Profits, Losses and other items of Partnership income, gain, loss or
deduction for the period beginning on the first day of the Allocation Year
during which the Purchase Date occurs and ending on the Purchase Date.
SECTION 8.03. Tax Matters.
(a) (i) The General Partner is authorized to make any and all elections
for federal, state, and local tax purposes including, without limitation, any
election, if permitted by applicable law: (i) to adjust the basis of Partnership
Property pursuant to Code Sections 754, 734(b) and 743(b), or comparable
provisions of state or local law, in connection with Transfers of Partnership
Interests and Partnership distributions; (ii) to extend the statute of
limitations for assessment of tax deficiencies against the Partners with respect
to adjustments to the Partnership's federal, state, or local tax returns; and
(iii) to the extent provided in Code Sections 6221 through 6231, to represent
the Partnership and the Partners before taxing authorities or courts of
competent jurisdiction in tax matters affecting the Partnership or the Partners
in their capacities as Partners, and to file any tax returns and execute any
agreements or other documents relating to or affecting such tax matters,
including agreements or other documents that bind the Partners with respect to
such tax matters or otherwise affect the rights of the Partnership and the
Partners. The General Partner is specifically authorized to act as the "Tax
Matters Partner" under the Code and in any similar capacity under state or local
law.
(ii) The General Partner shall give prompt notice to each Partner
upon the receipt of (A) written notice that the Internal Revenue Service
or any state or local taxing authority intends to examine the
Partnership's income tax returns for any year; (B) written notice of
commencement of an administrative proceeding at the Partnership level
related to the Partnership under Section 6223 of the Code; (C) written
notice or any final partnership administrative adjustment relating to the
Partnership pursuant to a proceeding under Section 6223 of the Code; (D)
any request from the Internal Revenue Service or any comparable state or
local agency for waiver of any applicable statute of limitation with
respect to the filing of any tax return by the Partnership; and (E) any
Form 5701 or comparable state or local audit adjustment notices as soon as
received, with copies of such notices provided to each Partner. In
addition, each Partner will be notified of and allowed to attend any
opening and closing conferences regarding any administrative proceeding at
the Partnership level relating to the Partnership under Section 6223 of
the Code, and the General Partner will provide copies to each Partner of
any correspondence with the Internal Revenue Service or comparable state
or local agency regarding legal positions taken on audit issues by the
General Partner. Within ninety (90) days after receipt of notice of a
final partnership administrative adjustment, the General Partner shall
notify each Partner if it does not intend to file for judicial review with
respect to such adjustment.
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(b) Necessary tax information shall be delivered to each Partner as soon
as practicable after the end of each Fiscal Year of the Partnership but not
later than ninety (90) days after the end of each Fiscal Year. The General
Partner shall file tax returns for the Partnership prepared in accordance with
the Code and the Regulations. Each Partner agrees that it will report all
Partnership taxable income, gain, loss, deduction and credit for each Fiscal
Year in the manner reflected on the Partnership's U.S. Partnership Return of
Income (Form 1065) and related Schedule K-1 furnished to such Partner for such
year.
SECTION 8.04. Proprietary Information. The Limited Partners shall not have
access to (i) information which the General Partner reasonably believes to be in
the nature of trade secrets or proprietary information, (ii) information the
disclosure of which the General Partner in good faith believes is not in the
best interest of the Partnership or could damage the Partnership or its
business, (iii) any information subject to the attorney-client privilege and
(iv) any information which is required by law or contract to be kept
confidential; provided, however, nothing set forth in this Section 8.04 shall
prevent any appraiser doing an appraisal performed in accordance with this
Agreement from having access to proprietary information described in this
Section 8.04 to the extent necessary to properly perform such appraisal and the
General Partner shall provide such information to any such appraiser; provided,
further, that such appraiser signs a confidentiality agreement reasonably
acceptable to the General Partner.
ARTICLE IX
AMENDMENTS; MEETINGS
SECTION 9.01. Amendments. Amendments to this Agreement may be proposed by
the General Partner or by any Limited Partner. Following such proposal, the
General Partner shall submit to the Partners a verbatim statement of any
proposed amendment if counsel for the Partnership shall have approved of the
same in writing as to form, and the General Partner shall include in any such
submission a recommendation as to the proposed amendment. The General Partner
shall seek the written vote of the Partners on the proposed amendment or shall
call a meeting to vote thereon and to transact any other business that it may
deem appropriate. A proposed amendment shall be adopted and be effective as an
amendment to this Agreement only if it receives the affirmative vote of the
General Partner and a majority of the Class B Limited Partners, provided that,
if any amendment would adversely affect any Class A Limited Partner, it must
also receive the affirmative vote of such Class A Limited Partner.
SECTION 9.02. Meetings of the Partners. (a) Meetings of the Partners may
be called by the General Partner and shall be called upon the written request of
any other Partner. The call shall state the nature of the business to be
transacted. Notice of any such meeting shall be given to all Partners not less
than seven (7) Business Days nor more than thirty (30) days prior to the date of
such meeting. Partners may vote in person, by proxy or by telephone at such
meeting. Whenever the vote or consent of Partners is permitted or required under
the Agreement, such vote
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or consent may be given at a meeting of Partners or may be given in accordance
with the procedure prescribed in Section 9.03.
(b) For the purpose of determining the Partners entitled to vote on, or to
vote at, any meeting of the Partners or any adjournment thereof, the General
Partner or the Partner requesting such meeting may fix, in advance, a date as
the record date for any such determination. Such date shall not be more than
thirty (30) days nor less than ten (10) days before any such meeting.
(c) Each Partner may authorize any Person or Persons to act for it by
proxy on all matters in which the Partner is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. Every
proxy must be signed by the Partner or its attorney-in-fact. No proxy shall be
valid after the expiration of eleven (11) months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the Partner executing it.
(d) Each meeting of Partners shall be conducted by the General Partner or
such other Person as the General Partner may appoint pursuant to such rules for
the conduct of the meeting as the General Partner or such other Person deems
appropriate.
SECTION 9.03. Unanimous Consent. In the event the consent of the Partners
is required for any action to be taken by the Partnership, such consent may be
given at a meeting, which may be conducted by conference telephone call, or
provided in writing executed by all the Partners.
ARTICLE X
TRANSFERS OF INTERESTS
SECTION 10.01. Restriction on Transfers. Except as otherwise permitted by
this Agreement, no Partner shall Transfer all or any portion of its Interest.
Each Partner hereby acknowledges the reasonableness of the restrictions on
Transfer imposed by this Agreement in view of the Partnership purposes and the
relationship of the Partners. Accordingly, the restrictions on Transfer
contained herein shall be specifically enforceable.
SECTION 10.02. Permitted Transfers. Subject to the conditions and
restrictions set forth in Section 10.03, a Partner may at any time Transfer all
or any portion of its Interest to (i) any other Partner, (ii) any Wholly Owned
Affiliate of a Partner including the transferor, (iii) any Person approved by
all the Partners, or (iv) in the case of any Class A Limited Partner, (A) any
Person pursuant to Section 14.03, or (B) any Person to whom such Class A Limited
Partner's Interest is Transferred as a result of a foreclosure under that
certain Credit Agreement dated as of April 1, 1997 among Leiden, as Borrower,
Utrecht, as Initial Lender and Coopereratieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch, as Agent.
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Any Transfer permitted by this Section 10.02 shall be referred to in this
Agreement as a "Permitted Transfer," and the Person to which the Interest is
transferred shall be a "Permitted Transferee."
SECTION 10.03. Conditions to Permitted Transfers. A Transfer shall not be
treated as a Permitted Transfer under Section 10.02 unless and until the
following conditions are satisfied:
(a) The transferor and transferee shall execute and deliver to the
Partnership (i) such documents and instruments of conveyance as may be necessary
or appropriate in the opinion of counsel to the Partnership to effect such
Transfer and to confirm the agreement of the transferee to be bound by the
provisions of this Article X, and (ii) except in the case of a Transfer to a
Wholly Owned Affiliate of a D&B Partner, in the case of the transferee, a
confidentiality agreement substantially in the form of the confidentiality
agreement attached hereto as Exhibit C (the "Form Confidentiality Agreement").
In addition, unless the requirements of this sentence have been waived by the
General Partner, the Partnership shall be reimbursed by the transferor and/or
transferee for all costs and expenses that it reasonably incurs in connection
with such Transfer.
(b) The Transfer will not cause the Partnership to terminate for federal
income tax purposes, and the transferor shall provide the Partnership an opinion
of counsel to such effect. Such counsel and opinion shall be reasonably
satisfactory to the General Partner, and the General Partner and the other
Partners shall provide to such counsel any information available to the General
Partner or to such other Partners, as the case may be, and relevant to such
opinion.
(c) The transferor and transferee shall furnish the Partnership with the
transferee's taxpayer identification number, sufficient information to determine
the transferee's initial tax basis in the Interests Transferred, and any other
information reasonably necessary to permit the Partnership to file all required
federal and state tax returns and other legally required information statements
or returns. Without limiting the generality of the foregoing, the Partnership
shall not be required to make any distribution otherwise provided for in this
Agreement with respect to any Transferred Interests until it has received such
information.
(d) Such Transfer will be exempt from all applicable registration
requirements and will not violate any applicable laws regulating the Transfer of
securities, and, except in the case of a Transfer of Interests to another
Partner or to a Wholly Owned Affiliate of any Partner, including the transferor,
the transferor shall provide an opinion of counsel to such effect. Such counsel
and opinion shall be reasonably satisfactory to the General Partner.
(e) Such Transfer will not cause the Partnership to be deemed to be an
"investment company" under the Investment Company Act of 1940, as amended and
the transferor shall provide an opinion of counsel to such effect. Such counsel
and opinion shall be reasonably satisfactory to the General Partner, and the
General Partner and the other Partners shall provide
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to such counsel any information available to the General Partner or to such
other Partners, as the case may be, and relevant to such opinion.
(f) Except in the case of a Transfer to a Wholly Owned Affiliate of a D&B
Partner, each Class A Limited Partner and the transferee of such Class A Limited
Partner shall execute certificates substantially similar to the certificates
(the "Form Transferor Certificate" and the "Form Transferee Certificate")
attached hereto as Exhibit D-1 and Exhibit D-2, respectively.
SECTION 10.04. Prohibited Transfers. Any purported Transfer of Interests
that is not a Permitted Transfer shall be null and void and of no effect
whatever; provided that, if the Partnership is required to recognize a Transfer
that is not a Permitted Transfer (or if the General Partner, in its sole
discretion, elects to recognize a Transfer that is not a Permitted Transfer),
the Interest Transferred shall be strictly limited to the transferor's rights to
allocations and distributions as provided by this Agreement with respect to the
Transferred Interests, which allocations and distributions may be applied
(without limiting any other legal or equitable rights of the Partnership) to
satisfy any debts, obligations, or liabilities for damages that the transferor
or transferee of such Interests may have to the Partnership.
In the case of a Transfer or attempted Transfer of Interests that is not a
Permitted Transfer, the parties engaging or attempting to engage in such
Transfer shall be liable to indemnify and hold harmless the Partnership and the
other Partners from all cost, liability, and damage that any of such indemnified
Persons may incur (including, without limitation, incremental tax liability and
lawyers' fees and expenses) as a result of such Transfer or attempted Transfer
and efforts to enforce the indemnity granted hereby.
SECTION 10.05. Rights of Unadmitted Assignees. (a) In General. A Person
who acquires one or more Interests but who is not admitted as a substituted
Partner pursuant to Section 10.06 shall be entitled only to allocations and
distributions with respect to such Interests in accordance with this Agreement,
but shall have no right to any information or accounting of the affairs of the
Partnership, shall not be entitled to inspect the books or records of the
Partnership, and shall not have any of the rights of a General Partner or a
Limited Partner under the Act or this Agreement.
(b) General Partner. A transferee who acquires a Partnership Interest from
a General Partner under this Agreement by means of a Transfer that is permitted
under this Article X, but who is not admitted as a General Partner, shall have
no authority to act for or bind the Partnership, to inspect the Partnership's
books, or otherwise to be treated as a General Partner. Following such a
Transfer, the transferor shall not cease to be a General Partner of the
Partnership and shall continue to be a General Partner until such time as the
transferee is admitted as a General Partner.
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SECTION 10.06. Admission as Substituted Partners. Subject to the other
provisions of this Article X, a transferee of Interests may be admitted to the
Partnership as a substituted Partner only upon satisfaction of the conditions
set forth below in this Section 10.06:
(a) The Interests with respect to which the transferee is being admitted
were acquired by means of a Permitted Transfer;
(b) The transferee becomes a party to this Agreement as a Partner and
executes such documents and instruments as the General Partner may reasonably
request (including, without limitation, amendments to the Certificate) as may be
necessary or appropriate to confirm such transferee as a Partner in the
Partnership and such transferee's agreement to be bound by the terms and
conditions of this Agreement;
(c) The transferee pays or reimburses the Partnership for all reasonable
legal, filing, and publication costs that the Partnership incurs in connection
with the admission of the transferee as a Partner with respect to the
Transferred Interests;
(d) If the transferee is a partnership or a corporation, the transferee
provides the Partnership with evidence satisfactory to counsel for the
Partnership that such transferee has made each of the representations and
undertaken each of the warranties described in Section 7.02 as of the date of
the Transfer; and
(e) In the event that the transferee of a Partnership Interest from any
Partner is admitted under this Agreement, such transferee shall be deemed
admitted to the Partnership as a substituted Partner immediately prior to the
Transfer, and with respect to the transferee of a General Partner, such
transferee shall continue the business of the Partnership without dissolution.
SECTION 10.07. Distributions with Respect to Transferred Interests. If any
Partnership Interest is sold, assigned, or Transferred in compliance with the
provisions of this Article X, all distributions on or before the date of such
Transfer shall be made to the transferor, and all distributions thereafter shall
be made to the transferee. Solely for purposes of making such distributions, the
Partnership shall recognize such Transfer not later than the end of the calendar
month during which it is given notice of such Transfer; provided, however, that
if the Partnership is given notice of a Transfer at least fourteen (14) days
prior to the Transfer, the Partnership shall recognize such Transfer as of the
date of such Transfer; and provided further, that if the Partnership does not
receive a notice stating the date such Interest was Transferred and such other
information as the General Partner may reasonably require within thirty (30)
days after the end of the accounting period during which the Transfer occurs,
all distributions shall be made to the Person who, according to the books and
records of the Partnership, on the last day of the accounting period during
which the Transfer occurs, was the owner of the Interest. Neither the
Partnership nor the General Partner shall incur any liability for making
distributions in accordance
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with the provisions of this Section 10.07, whether or not the General Partner or
the Partnership has knowledge of any Transfer of ownership of any Interest.
SECTION 10.08. Retirement of Class A Limited Partners' Interests in the
Partnership; Determination of Mark-to-Market Values and Gross Asset Values.
(a) In General.
(i) The General Partner may, at any time, elect to cause all or any
portion of the Class A Limited Partners' Interests in the Partnership to
be retired in accordance with this Section 10.08 by giving written notice
of its election to the Partnership and to all other Partners; provided
that:
(A) Any single distribution made to a Class A Limited Partner
in retirement of its Interest in accordance with this Section 10.08
shall not be less than the lesser of the amount necessary to retire
the entire Interest of such Class A Limited Partner or $10,000,000
plus integral multiples of $1,000,000; and
(B) No Liquidating Event or Notice Event (or event which, with
notice or lapse of time, or both, would constitute a Liquidating
Event or Notice Event, other than the events described in Section
12.01(a) and Section 14.01(a)) shall have occurred and be
continuing, immediately before or after giving effect to such
retirement.
(ii) Any notice given pursuant to this Section 10.08(a) (a
"Retirement Notice") shall include the following:
(A) Either a statement that the entire Interests of the Class
A Limited Partners are to be retired or a statement of the amount to
be distributed in retirement of each Class A Limited Partner's
Interest; and
(B) The Retirement Date (as defined in and selected in
accordance with Section 10.08(b)(iii)) on which retirement
distributions shall be made to the Class A Limited Partners.
(b) Distributions Upon Retirement. In the event that any portion of the
Class A Limited Partner's Interests in the Partnership are retired pursuant to
this Section 10.08, (x) the value of the Partnership's assets shall be
determined in accordance with Section 10.08(b)(i) and the Gross Asset Values of
all Partnership assets shall be adjusted pursuant to subparagraph (ii) of the
definition of Gross Asset Value in Section 1.10 as of the applicable Retirement
Date, and (y) Profits, Losses and other items of Partnership income, gain, loss
or deduction for the period beginning on the first day of the Allocation Year
during which the Retirement Date occurs and ending on the Retirement Date shall
be allocated pursuant to Article III. On the applicable
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Retirement Date, the Partnership shall distribute to each Class A Limited
Partner an amount of cash, (A) in the event that the entire Interest of such
Class A Limited Partner is to be retired, equal to the balance in such Class A
Limited Partner's Capital Account immediately after giving effect to the
adjustments and allocations required by the first sentence of this Section
10.08(b) and as reflected on the statement of Capital Accounts provided to the
Partners pursuant to Section 8.02(d)(ii), or (B) in all other cases, equal to
the amount stated in the applicable Retirement Notice.
(i) For purposes of determining the amount of any adjustment to the
Gross Asset Values of Partnership assets pursuant to subparagraph (ii) of
the definition of Gross Asset Value in Section 1.10, the value of each of
the Permitted Assets will be determined in accordance with this Section
10.08(b)(i) (the "Mark-to-Market Value").
(A) The Mark-to-Market Value of any Loan shall be equal to the
par value of such Loan; provided that if there has occurred and is
continuing any payment or other material default with respect to any
such Loan at the time such value is being determined, the
Mark-to-Market Value of such Loan shall be determined by an
investment or commercial bank of national recognition selected by
the General Partner with the consent of the Class A Limited Partner
(which consent shall not be unreasonably withheld).
(B) The Mark-to-Market Value of the Software and Databases
shall be determined by appraisal by Coopers & Lybrand or, if Coopers
& Lybrand is unavailable or unwilling to do such appraisal, the
Alternative Appraiser, in each case using substantially the same
valuation methodology as was used in determining the initial Gross
Asset Value of the Software and Databases.
(C) The Mark-to-Market Value of any Cash or Cash Equivalents
shall be valued at their face value less unamortized discounts and
plus unamortized premium, if any.
(D) The Mark-to-Market Value of any Permitted Security shall
be equal to its Market Value.
(E) The Mark-to-Market Value of Partnership Subsidiary I Stock
or Partnership Subsidiary II Stock shall be equal to the aggregate
Mark-to-Market Values of all Permitted Assets held by Partnership
Subsidiary I or Partnership Subsidiary II, as the case may be.
(F) The Mark-to-Market Value of the Computer Equipment shall
be determined by appraisal by Coopers & Lybrand or, if Coopers &
Lybrand is
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unavailable or unwilling to do such appraisal, the Alternative
Appraiser, in each case using substantially the same valuation
methodology as was used in determining the initial Gross Asset Value
of the Computer Equipment.
(ii) If all or any portion of the Class A Limited Partners'
Interests in the Partnership are retired prior to the fourth anniversary
of the Closing Date, the Partnership shall pay to each Class A Limited
Partner on the applicable Retirement Date cash in an amount equal to such
Class A Limited Partner's Early Liquidation Premium, if any. Amounts
payable under this Section 10.08(b)(ii) shall be treated as guaranteed
payments within the meaning of Code Section 707(c), shall be considered an
expense of the Partnership for income tax purposes and an expense or
capital item for financial reporting purposes, as the case may be, and
shall not be considered a distribution of money to any Class A Limited
Partner that would reduce its Capital Account.
(iii) In the event that the General Partner has elected to retire
all or any portion of the Class A Limited Partners' Interests in the
Partnership pursuant to Section 10.08(a), distributions shall be made to
each Class A Limited Partner, and such portion of each Class A Limited
Partner's Interest in the Partnership shall be retired, at 11:00 a.m. on
the date (the "Retirement Date") specified in the Retirement Notice, which
date shall not be less than five (5) Business Days or more than fifteen
(15) Business Days after the date on which the Retirement Notice was given
pursuant to Section 10.08(a).
ARTICLE XI
GENERAL PARTNER
SECTION 11.01. Covenant Not to Withdraw, Transfer, or Dissolve. Except as
otherwise permitted by this Agreement, the General Partner hereby covenants and
agrees not to (i) take any action to file a certificate of dissolution or its
equivalent with respect to itself, (ii) withdraw or attempt to withdraw from the
Partnership, (iii) exercise any power under the Act to dissolve the Partnership,
(iv) Transfer all or any portion of its Interest in the Partnership as a General
Partner, or (v) petition for judicial dissolution of the Partnership. Further,
the General Partner hereby covenants and agrees to continue to carry out the
duties of the General Partner under this Agreement until the Partnership is
dissolved and liquidated pursuant to Article XII.
SECTION 11.02. Termination of Status as General Partner. (a) The General
Partner shall cease to be a General Partner upon the first to occur of (i) the
Bankruptcy of such Partner, (ii) the Transfer of the General Partner's entire
Interest as a General Partner, provided that the transferee is admitted as a
substituted General Partner pursuant to Section 10.06 hereof, (iii) the
involuntary Transfer by operation of law of the General Partner's Interest in
the Partnership, or (iv) the vote of all of the Partners to approve a request by
the General Partner to withdraw. In
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the event the General Partner ceases to be a General Partner without having
Transferred its entire Interest as a General Partner, such Person shall be
treated as an unadmitted transferee of a Partnership Interest as a result of a
Transfer (other than a Permitted Transfer) of an Interest pursuant to Section
10.04.
If the General Partner ceases to be a Partner for any reason under this
Agreement, such Person shall continue to be liable as a Partner for all debts
and obligations of the Partnership existing at the time such Person ceases to be
a General Partner, regardless of whether, at such time, such debts or
liabilities were known or unknown, actual or contingent provided, however, that
the assets of such Person shall be subject to the protection of Section
17-403(d) of the Act. A Person shall not be liable as a General Partner for
Partnership debts and obligations arising after such Person ceases to be a
General Partner. Any debts, obligations, or liabilities in damages to the
Partnership of any Person who ceases to be a General Partner shall be
collectible by any legal means and the Partnership is authorized, in addition to
any other remedies at law or in equity, to apply any amounts otherwise
distributable or payable by the Partnership to such Person to satisfy such
debts, obligations, or liabilities.
(b) If at the time a Person ceases to be a General Partner, such Person is
also a Limited Partner with respect to Interests other than its Interest as a
General Partner, such cessation shall not affect such Person's rights and
obligations with respect to such Limited Partner Interests.
SECTION 11.03. Election of New General Partners. Provided the Partnership
has one General Partner, any Partner may nominate one or more Persons described
in Section 10.02 for election as additional General Partners; provided that any
such Person satisfies the requirements in Sections 10.03 and 10.06 applicable to
the transferee in a Permitted Transfer and the admission of a transferee as a
substituted General Partner. The election of an additional General Partner shall
require an affirmative vote of all of the Partners.
ARTICLE XII
DISSOLUTION AND WINDING UP
SECTION 12.01. Liquidating Events. The Partnership shall dissolve and
commence winding up and liquidating upon the first to occur of any of the
following ("Liquidating Events"):
(a) The twentieth anniversary of the Closing Date;
(b) The date on which, pursuant to Section 14.02, a Liquidation
Notice becomes effective to cause a Notice Event to become a Liquidating
Event;
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(c) In the event any one or more of the D&B Partners has elected
pursuant to Section 14.03 to purchase any Class A Limited Partner's
Interest, the failure of any of such D&B Partners, or their designees, to
pay the Purchase Price as required pursuant to such Section 14.03;
(d) The unanimous vote of the Partners to dissolve, wind up, and
liquidate the Partnership;
(e) The happening of any other event that makes it unlawful,
impossible, or impractical to carry on the business of the Partnership or
the Delaware Court of Chancery has entered a decree pursuant to Section
17-802 of the Act, and such decree has become final; or
(f) The withdrawal or removal of the General Partner, the assignment
by the General Partner of its entire Interest in the Partnership or any
other event that causes the General Partner to cease to be a general
partner under the Act; provided that any such event shall not constitute a
Liquidating Event if the Partnership is continued pursuant to this Section
12.01.
The Partners hereby agree that, notwithstanding any provision of the Act or the
Delaware Uniform Partnership Act, the Partnership shall not dissolve prior to
the occurrence of a Liquidating Event. Upon the occurrence of any event set
forth in Section 12.01(f) (so long as no other Liquidating Event has occurred),
the Partnership shall not be dissolved or required to be wound up if at the time
of such event there is at least one remaining General Partner and that General
Partner carries on the business of the Partnership (any such remaining General
Partner being hereby authorized to carry on the business of the Partnership). If
at such time there is not at least one remaining General Partner or the
remaining General Partner does not carry on the business of the Partnership, the
Partnership shall be liquidated in accordance with this Article XII.
SECTION 12.02. Winding Up. Upon the occurrence of a Liquidating Event, the
Partnership shall continue solely for the purposes of winding up its affairs in
an orderly manner, liquidating its assets, and satisfying the claims of its
creditors and Partners, and no Partner shall take any action with respect to the
Partnership that is inconsistent with the winding up of the Partnership's
business and affairs; provided that all covenants contained in this Agreement
and obligations provided for in this Agreement shall continue to be fully
binding upon the Partners until such time as the Partnership Property has been
distributed pursuant to this Section 12.02 and the Certificate has been canceled
pursuant to the Act. The Liquidator shall be responsible for overseeing the
winding up and dissolution of the Partnership. The Liquidator shall take full
account of the Partnership's liabilities and Partnership Property and, except as
otherwise provided in Section 12.03, shall, within sixty (60) days of the
occurrence of a Liquidating Event cause the Partnership Property or the proceeds
from the sale or disposition thereof (as determined pursuant
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to Section 12.10), to the extent sufficient therefor, to be applied and
distributed, to the maximum extent permitted by law and notwithstanding anything
in this Agreement to the contrary, in the following order:
(a) First, to creditors (including the Class A Limited Partners to
the extent such Partners are creditors, to the extent otherwise permitted
by law) other than the D&B Partners and their Affiliates, in satisfaction
of all of the Partnership's debts and liabilities (including claims and
obligations as required by Section 17-804(b) of the Act) other than
liabilities for which reasonable provision for payment has been made and
liabilities for distributions to Partners under Section 17-601 or 17-604
of the Act;
(b) Second, to the Class A Limited Partners in an amount equal to
the amount of any Early Liquidation Premium that is then due and unpaid;
(c) Third, to the payment and discharge of all of the Partnership's
debts and liabilities to the D&B Partners and their Affiliates to the
extent adequate provision therefor has not been made; and
(d) The balance, if any, to the Partners in accordance with their
positive Capital Accounts, after giving effect to all contributions,
distributions, and allocations for all periods.
In the event that any payment or distribution made under this Section 12.02 is
made in-kind, the amount of the payment or distribution will be equal to the
Mark-to-Market Value of the Partnership Property paid or distributed at the time
of such payment or distribution.
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article XII.
The D&B Partners understand and agree that by accepting the provisions of this
Section 12.02 setting forth the priority of the distribution of the assets of
the Partnership to be made upon its liquidation, the D&B Partners expressly
waive any right which they, as creditors of the Partnership, might otherwise
have under the Act to receive distributions of assets pari passu with the other
creditors of the Partnership in connection with a distribution of assets of the
Partnership in satisfaction of any liability of the Partnership, and hereby
subordinate to said creditors any such right.
SECTION 12.03. Restoration of Deficit Capital Accounts; Compliance With
Timing Requirements of Regulations. In the event the Partnership is "liquidated"
within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), (x)
distributions shall be made pursuant to this Article XII to the Partners who
have positive Capital Accounts in compliance with Regulations
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Section 1.704-1(b)(2)(ii)(b)(2), and (y) if the General Partner's Capital
Account has a deficit balance (after giving effect to all contributions,
distributions, and allocations for all taxable years, including the taxable year
during which such liquidation occurs), the General Partner shall contribute to
the capital of the Partnership the amount necessary to restore such deficit
balance to zero in compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(3).
If any Limited Partner has a deficit balance in its Capital Account (after
giving effect to all contributions, distributions and allocations for all
taxable years, including the taxable year during which such liquidation occurs),
such Limited Partner shall have no obligation to make any contribution to the
capital of the Partnership with respect to such deficit, and such deficit shall
not be considered a debt owed to the Partnership or to any other Person for any
purpose whatsoever. In the discretion of the Liquidator, with the consent of the
Class A Limited Partners, a portion (determined in the manner provided below) of
the distributions that may otherwise be made to the Partners pursuant to this
Article XII may be:
(a) Distributed to a trust established for the benefit of the
Partners solely for the purposes of liquidating Partnership Property,
collecting amounts owed to the Partnership, and paying any contingent or
unforeseen liabilities or obligations of the Partnership or of the General
Partner arising out of or in connection with the Partnership. The assets
of any such trust shall be distributed to the Partners from time to time,
in the reasonable discretion of the Liquidator, in the same proportions
(as determined below) as the amount distributed to such trust by the
Partnership would otherwise have been distributed to the Partners pursuant
to Section 12.02; or
(b) Withheld to provide a reasonable reserve for Partnership
liabilities (contingent or otherwise) and to allow for the collection of
the unrealized portion of any installment obligations owed to the
Partnership, provided that such withheld amounts shall be distributed to
the Partners as soon as practicable.
The portion of the distributions that would otherwise have been made to each of
the Partners that is instead distributed to a trust pursuant to Section 12.03(a)
or withheld to provide a reserve pursuant to Section 12.03(b) shall be
determined in the same manner as the expense or deduction would have been
allocated if the Partnership had realized an expense equal to such amounts
immediately prior to distributions being made pursuant to Section 12.02.
SECTION 12.04. Deemed Distribution and Recontribution. In the event the
Partnership is liquidated within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g) but no Liquidating Event has occurred, the Partnership
Property shall not be liquidated, the Partnership's liabilities shall not be
paid or discharged, and the Partnership's affairs shall not be wound up.
Instead, solely for federal income tax purposes, the Partnership shall be deemed
to have distributed the Partnership Property in-kind to the Partners, who shall
be deemed to have taken subject to all Partnership liabilities, all in
accordance with their respective Capital Accounts. Immediately
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thereafter, the Partners shall be deemed to have recontributed the Partnership
Property in-kind to the Partnership, which shall be deemed to have taken subject
to all such liabilities.
SECTION 12.05. Rights of Partners. Each Partner shall look solely to the
Partnership Property for the return of its Capital Contribution and, except as
otherwise provided in Section 12.10, shall have no right or power to demand or
receive property other than cash from the Partnership.
SECTION 12.06. Notice of Dissolution. In the event a Liquidating Event
occurs or an event occurs that would, but for provisions of Section 12.01,
result in a dissolution of the Partnership, the General Partner shall, within
thirty (30) days thereafter, provide written notice thereof to each of the
Partners and to all other parties with whom the Partnership regularly conducts
business (as determined in the discretion of the General Partner) and shall
publish notice thereof in a newspaper of general circulation in each place in
which the Partnership regularly conducts business (as determined in the
discretion of the General Partner).
SECTION 12.07. Liquidation Guaranteed Payment. On the date on which all of
the assets of the Partnership are distributed to the Partners pursuant to
Section 12.02, the Partnership shall pay to each Class A Limited Partner an
amount equal to such Class A Limited Partner's Early Liquidation Premium, if
any. Amounts payable under this Section 12.07 shall be paid in cash, unless, at
such time as the Partnership has failed to pay all or any portion of such amount
then due and payable, the Class A Limited Partners elect to have such amounts
paid in-kind. In the event the Class A Limited Partners have made such an
election, such payments shall be made in the form of Loans and/or Cash
Equivalents (as determined by the Class A Limited Partners in their sole
discretion subject only to the Partnership holding any such asset in the amounts
requested) with an aggregate Mark-to-Market Value equal to the amount due and
payable. In addition, amounts payable under this Section 12.07 shall be treated
as guaranteed payments within the meaning of Code Section 707(c), shall be
considered an expense of the Partnership for income tax purposes and an expense
or capital item for financial reporting purposes, as the case may be, and shall
not be considered a distribution to any Class A Limited Partner for all purposes
of this Agreement, including, without limitation, in maintaining any Class A
Limited Partner's Capital Account.
SECTION 12.08. Character of Liquidating Distributions. All payments made
in liquidation of the Interest of a retiring Partner (whether pursuant to
Article X or Article XII) shall be made in exchange for the interest of such
Partner in Partnership Property pursuant to Section 736(b)(1) of the Code,
including the interest of such Partner in Partnership goodwill.
SECTION 12.09. The Liquidator. The "Liquidator" shall mean the General
Partner, provided that, if at the time a Liquidating Event has occurred there is
no remaining General Partner, the "Liquidator" shall be appointed by the Class A
Limited Partners.
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SECTION 12.10. Form of Liquidating Distributions. (a) In general. Except
as provided in this Section 12.10, for purposes of making distributions required
by Section 12.02, the Liquidator may determine whether to distribute all or any
portion of the Partnership Property in-kind or to sell all or any portion of the
Partnership Property and distribute the proceeds therefrom, provided that the
Liquidator shall not distribute Partnership Property other than cash to any
Class A Limited Partner without its consent, and the Liquidator shall be
required to reduce the Partnership Property to cash to the extent necessary to
make distributions to the Class A Limited Partners pursuant to Section 12.02 in
cash.
(b) Class A Limited Partner In-Kind Election. At the election of the Class
A Limited Partners, the Liquidator may be required to distribute all of the
Partnership Property in-kind. In such event, the Property to be distributed to
each Partner shall be determined by the Liquidator; provided that, subject to
Section 12.10(c), distribution of any Partnership Property to any Class A
Limited Partner other than Loans or Cash Equivalents shall require the consent
of all of the Partners.
(c) Other Permitted Assets. In no event shall the Software and Databases
be distributed to the Class A Limited Partners in kind.
ARTICLE XIII
POWER OF ATTORNEY
SECTION 13.01. General Partner as Attorney-In-Fact. Each Partner hereby
makes, constitutes, and appoints the General Partner, each successor General
Partner, and the Liquidator, severally, with full power of substitution and
resubstitution, its true and lawful attorney-in-fact for it and in its name,
place, and stead and for its use and benefit, to sign, execute, certify,
acknowledge, swear to, file, publish and record (i) all certificates of limited
partnership, amended name or similar certificates, and other certificates and
instruments (including counterparts of this Agreement) which the General Partner
or Liquidator may deem necessary to be filed by the Partnership under the laws
of the State of Delaware or any other state or jurisdiction in which the
Partnership is doing or intends to do business, (ii) any and all amendments,
restatements or changes to this Agreement and the instruments described in (i),
as now or hereafter amended, which the General Partner may deem necessary to
effect a change or modification of the Partnership approved by the Partners in
accordance with the terms of this Agreement, including, without limitation,
amendments, restatements or changes to reflect (A) the exercise by the General
Partner of any power granted to it under this Agreement, (B) any amendments
adopted by the Partners in accordance with the terms of this Agreement; (C) the
admission of any substituted Partner, and (D) the disposition by any Partner of
its Interest in the Partnership, (iii) all certificates of cancellation and
other instruments which the General Partner or Liquidator deem necessary or
appropriate to effect the dissolution and termination of the Partnership
pursuant to
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the terms of this Agreement, and (iv) any other instrument which is now or may
hereafter be required by law to be filed on behalf of the Partnership or is
deemed necessary by the General Partner or Liquidator to carry out fully the
provisions of this Agreement in accordance with its terms. Each Partner
authorizes each such attorney-in-fact to take any further action which such
attorney-in-fact shall consider necessary in connection with any of the
foregoing, hereby giving each such attorney-in-fact full power and authority to
do and perform each and every act or thing whatsoever requisite to be done in
connection with the foregoing as fully as such Partner might or could do
personally, and hereby ratifying and confirming all that any such
attorney-in-fact shall lawfully do or cause to be done by virtue thereof or
hereof.
SECTION 13.02. Nature of Special Power. The power of attorney granted
pursuant to this Article XIII:
(a) Is a special power of attorney coupled with an interest and is
irrevocable;
(b) May be exercised by any such attorney-in-fact by listing the
Partners executing any agreement, certificate, instrument, or other
document with the single signature of any such attorney-in-fact acting as
attorney-in-fact for such Partners; and
(c) Shall survive and not be affected by the subsequent Bankruptcy,
insolvency, dissolution, or cessation of existence of a Partner and shall
survive the delivery of an assignment by a Partner of the whole or a
portion of its Interest in the Partnership (except that where the
assignment is of such Partner's entire Interest in the Partnership and the
assignee is admitted as a substituted Partner, the power of attorney shall
survive the delivery of such assignment for the sole purpose of enabling
any such attorney-in-fact to effect such substitution) and shall extend to
such Partner's or assignee's successors and assigns.
ARTICLE XIV
NOTICE EVENTS
SECTION 14.01. Notice Events. In the event that any of the following
events ("Notice Events") shall occur, the Partners shall have the rights
described in Section 14.02:
(a) The occurrence of the 110th day prior to the fourth anniversary
of the Closing Date;
(b) The General Partner, DBI or D&B shall (i) fail to remain in
substantial compliance with the terms, covenants and obligations required
on its part to be performed or observed under Sections 5.04(a) and
5.04(b), or (ii) fail to perform or observe any
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material term, covenant or obligation on its part to be performed or
observed (except such terms, covenants or obligations as are described in
clause (i) above) under (A) this Agreement (except for specific violations
the cure periods for which are specifically provided for as Notice Events
hereunder), (B) the Lease Agreement, or (C) the D&B Guaranty, in each case
if such failure under either clause (i) or clause (ii) of this Section
14.01(b) is not cured within thirty (30) days of a Responsible Officer
obtaining actual knowledge of such failure;
(c) The failure of the Partnership to distribute to each Class A
Limited Partner in immediately available funds on the last Business Day of
each Fiscal Quarter an amount equal to the remainder, if any, of (i) the
cumulative Priority Return of such Class A Limited Partner from the
Closing Date to the last Business Day of the Fiscal Quarter during which
such distribution is made, minus (ii) all prior distributions to such
Class A Limited Partner pursuant to Section 4.01, if such failure is not
cured within ten (10) Business Days of receipt by the General Partner of
notice thereof;
(d) The Bankruptcy of the Partnership, the General Partner, DBI or
D&B; and
(e) A D&B Event shall occur.
SECTION 14.02. Liquidation Notice. (a) Liquidation Notice. At any time on
or after the occurrence of a Notice Event, each Class A Limited Partner may
elect to cause such Notice Event to result in a Liquidating Event by delivering
to the General Partner a notice (a "Liquidation Notice") of such election;
provided that: (i) such Notice Event shall not result in a Liquidating Event
until the expiration of ten (10) Business Days following such delivery, (ii)
such Class A Limited Partner may rescind such Liquidation Notice by delivering
to the General Partner a notice prior to such tenth (10th) Business Day, and
(iii) a Liquidation Notice automatically will be deemed rescinded upon the
election within such ten (10) Business Day period by any one or more of the D&B
Partners pursuant to the Purchase Option to purchase all Class A Limited
Partners' Interests.
SECTION 14.03. Electing Partners' Purchase Option. (a) Election of
Purchase Option. Any one or more of the D&B Partners or their designees
(referred to in this Section 14.03 as the "Electing Partners") may elect
pursuant to a purchase option (the "Purchase Option") to purchase the Class A
Limited Partners' entire Interests in such proportions as they shall agree (i)
within the ten (10) Business Day period prior to the effectiveness of any
Liquidation Notice delivered to the General Partner pursuant to Section 14.02,
or (ii) at any time after the fourth anniversary of the Closing Date upon ten
(10) Business Days' prior notice (the "Election Notice"). The day on which a
Liquidation Notice is delivered to the General Partner shall be the "Election
Date," provided that, if no Liquidation Notice has been delivered, the day on
which the
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Election Notice is given shall be the "Election Date." An Election Notice given
pursuant to this Section 14.03 shall be irrevocable and binding on the Electing
Partners.
(b) Purchase Price. The purchase price (the "Purchase Price") of each
Class A Limited Partner's Interest shall equal the sum of (A) the balance in
such Class A Limited Partner's Capital Account as stated on the statement of
Capital Accounts determined in accordance with this Agreement and provided to
the Partners pursuant to Section 8.02(e); and (B) an amount equal to such Class
A Limited Partner's Early Liquidation Premium, if any.
(c) Purchase. (i) The Purchase Price shall be payable in immediately
available funds, and the closing of the purchase and sale of each Class A
Limited Partner's Interest shall occur, on the Purchase Date.
(ii) The closing shall occur at such place as is mutually agreeable
to the Partners, or upon the failure to agree, at the principal place of
business of the Partnership. On the Purchase Date, each Class A Limited
Partner shall deliver to the Electing Partners good title, free and clear
of any liens, claims, encumbrances, security interests or options, to its
Interest thus purchased. The Electing Partners shall remain obligated to
pay any and all reasonable out-of-pocket expenses (including attorneys'
fees and expenses) incurred by each Class A Limited Partner in enforcing
any rights under this Section 14.03.
(iii) On the Purchase Date, the Partners shall execute such
documents and instruments of conveyance as may be necessary or appropriate
to effectuate the transaction contemplated hereby, including, without
limitation, the Transfer of the Interests of the Class A Limited Partners.
The reasonable costs of such Transfer and closing, including, without
limitation, attorneys' fees and filing fees, shall be paid by the Electing
Partners.
(d) Treatment as Purchase Under Section 741. The Partners agree to treat
the Transfer of the Class A Limited Partners' Interests to the Electing Partners
pursuant to this Section 14.03 as a purchase and sale under Section 741 of the
Code and not as a retirement under Section 736 of the Code.
ARTICLE XV
MISCELLANEOUS
SECTION 15.01. Notices. Any notice, payment, demand, or communication
required or permitted to be given by any provision of this Agreement shall be in
writing or by facsimile and shall be deemed to have been delivered, given, and
received for all purposes (i) if delivered personally to the Person or to an
officer of the Person to whom the same is directed, or (ii) when the same is
actually received, if sent either by registered or certified mail, postage and
charges
<PAGE> 64
59
prepaid, or by facsimile, if such facsimile is followed by a hard copy of the
facsimiled communication sent by registered or certified mail, postage and
charges prepaid, addressed as follows, or to such other address as such Person
may from time to time specify by notice to the Partners:
(a) If to the Partnership, to the address set forth in the first
sentence of Section 1.04, with a copy sent to the General Partner at its
address set forth in Section 2.01;
(b) If to the General Partner, to the addresses set forth in Section
2.01; and
(c) If to any Limited Partner, to its address set forth in Section
2.02.
Any such notice shall be deemed to be delivered, given, and received for all
purposes as of the date so delivered, if delivered personally, or otherwise as
of the date on which the same was received. Any Person may from time to time
specify a different address by notice to the Partnership and the Partners.
SECTION 15.02. Binding Effect. Except as otherwise provided in this
Agreement, every covenant, term, and provision of this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective
successors, transferees and assigns.
SECTION 15.03. Construction. Every covenant, term, and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any Partner.
SECTION 15.04. Headings. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define, or limit the scope, extent, or intent of this Agreement or
any provision of this Agreement.
SECTION 15.05. Severability. Except as otherwise provided in the
succeeding sentence, every provision of this Agreement is intended to be
severable, and, if any term or provision of this Agreement is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
validity or legality of the remainder of this Agreement. The preceding sentence
of this Section 15.05 shall be of no force or effect if the consequence of
enforcing the remainder of this Agreement without such illegal or invalid term
or provision would be to cause any Partner to lose the benefit of its economic
bargain.
SECTION 15.06. Variation of Pronouns. All pronouns and any variations
thereof shall be deemed to refer to masculine, feminine, or neuter, singular or
plural, as the identity of the Person or Persons may require.
<PAGE> 65
60
SECTION 15.07. Governing Law. The laws of the State of Delaware shall
govern the validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties of the Partners.
SECTION 15.08. Waiver of Action for Partition. Each of the Partners
irrevocably waives any right that it may have to maintain any action for
partition with respect to any of the Partnership Property.
SECTION 15.09. Waiver of Jury Trial. Each of the Partners irrevocably
waives to the extent permitted by law all rights to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement.
SECTION 15.10. Consent to Jurisdiction. Each Partner (i) irrevocably
submits to the jurisdiction of any New York State or Delaware State court or
Federal court sitting in New York County or Wilmington, Delaware in any action
arising out of this Agreement, (ii) agrees that all claims in such action may be
decided in such court, (iii) waives, to the fullest extent it may effectively do
so, the defense of an inconvenient forum, and (iv) consents to the service of
process by mail. A final judgment in any such action shall be conclusive and may
be enforced in other jurisdictions. Nothing herein shall affect the right of any
party to serve legal process in any manner permitted by law or affect its right
to bring any action in any other court.
SECTION 15.11. Counterpart Execution. This Agreement may be executed in
any number of counterparts with the same effect as if all of the Partners had
signed the same document. All counterparts shall be construed together and shall
constitute one agreement.
SECTION 15.12. Sole and Absolute Discretion. Except as otherwise provided
in this Agreement, all actions which the General Partner may take and all
determinations which the General Partner may make pursuant to this Agreement may
be taken and made at the sole and absolute discretion of the General Partner.
SECTION 15.13. Specific Performance. Each Partner agrees with the other
Partners that the other Partners would be irreparably damaged if any of the
provisions of this Agreement are not performed in accordance with their specific
terms and that monetary damages would not provide an adequate remedy in such
event. Accordingly, it is agreed that, in addition to any other remedy to which
the nonbreaching Partners may be entitled, at law or in equity, the nonbreaching
Partners shall be entitled to injunctive relief to prevent breaches of the
provisions of this Agreement and specifically to enforce the terms and
provisions of this Agreement in any action instituted in any court of the United
States or any state thereof having subject matter jurisdiction thereof.
<PAGE> 66
61
IN WITNESS WHEREOF, the parties have entered into this Amended and
Restated Agreement of Limited Partnership as of the day first above set forth.
[signatures follow on separate pages]
<PAGE> 67
GENERAL PARTNER:
DUNS INVESTING VII CORPORATION
By: /s/ Philip C. Danford
---------------------------------
Name: Philip C. Danford
Title: VP & Treasurer
THIS IS A SIGNATURE PAGE TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
D&B INVESTORS L.P.
AND IS EXECUTED BY THE PARTY NAMED ABOVE.
<PAGE> 68
LIMITED PARTNERS:
DUN & BRADSTREET, INC.
By: /s/ Philip C. Danford
---------------------------------
Name: Philip C. Danford
Title: VP & Treasurer
THIS IS A SIGNATURE PAGE TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
D&B INVESTORS L.P.
AND IS EXECUTED BY THE PARTY NAMED ABOVE.
<PAGE> 69
DUNS HOLDING, INC.
By: /s/ J.N. Denholm
---------------------------------
Name: J.N. Denholm
Title: President
THIS IS A SIGNATURE PAGE TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
D&B INVESTORS L.P.
AND IS EXECUTED BY THE PARTY NAMED ABOVE.
<PAGE> 70
UTRECHT-AMERICA FINANCE CO.
By: /s/ J.W. den Baas
------------------------------------
Name: J.W. den Baas
Title: Vice President
/s/ David I. Dietz
------------------------------------
Name: David I. Dietz
Title: Assistant Treasurer
THIS IS A SIGNATURE PAGE TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
D&B INVESTORS L.P.
AND IS EXECUTED BY THE PARTY NAMED ABOVE.
<PAGE> 71
LEIDEN, INC.
By: /s/ Reinier Mesritz
----------------------------------------
Name: Reinier Mesritz
Title: Chairman of the Board & President
THIS IS A SIGNATURE PAGE TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
D&B INVESTORS L.P.
AND IS EXECUTED BY THE PARTY NAMED ABOVE.