exv10w5



 





Exhibit 10.5




OMNIBUS AGREEMENT





          
THIS OMNIBUS AGREEMENT is entered into on, and effective as of, [•], 2007, by and between
QUEST ENERGY PARTNERS, L.P., a Delaware limited liability partnership (the “Partnership”),
QUEST ENERGY GP, LLC, a Delaware limited liability company (the “General Partner”) and
QUEST RESOURCE CORPORATION, a Nevada corporation (“QRC”). The Partnership, the General
Partner and QRC are sometimes referred to in this Agreement each as a “Party” and
collectively as the “Parties.”



RECITALS





          
A. The Parties desire by their execution of this Agreement to evidence their understanding, as
more fully set forth in Article II of this Agreement, with respect to the Partnership’s
reimbursement obligations to QRC for operating expenses, general and administrative services and
insurance coverage and expenses.




          
B. The Parties desire by their execution of this Agreement to evidence their understanding, as
more fully set forth in Article III of this Agreement, with respect to the non-competition
obligations of QRC and its subsidiaries.




          
C. The Parties desire by their execution of this Agreement to evidence their understanding, as
more fully set forth in Article IV of this Agreement, with respect to certain indemnification
obligations of the Parties to each other.




          
D. The Parties desire by their execution of this Agreement to evidence their understanding, as
more fully set forth in Article V of this Agreement, with respect to the granting of a license from
QRC to the Partnership Group and the General Partner.




          
In consideration of the premises and the covenants, conditions and agreements contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:



ARTICLE I




DEFINITIONS





          
As used in this Agreement, the following terms shall have the respective meanings set forth
below:




          
“Affiliate” means, with respect to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by or is under common
control with, the Person in question. As used herein, the term “control” 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 ownership of voting securities, by contract or otherwise.




          
“Agreement” means this Omnibus Agreement, as it may be amended, supplemented or
restated from time to time in accordance with the terms hereof.



 









 






          
“Assets” means the oil and gas properties and related assets conveyed, contributed or
otherwise transferred by the QRC Entities to the Partnership Group prior to or on the Closing Date,
including any such assets held by a Person whose ownership interests are transferred by the QRC
Entities to the Partnership Group prior to or on the Closing Date, by means of operation of law or
otherwise.




          
“Business Opportunity” means an opportunity to acquire, directly or indirectly,
natural gas or oil wells or other natural gas or oil rights and related equipment and facilities,
but not including any midstream or downstream assets, located in the Cherokee Basin.




          
“Cause” has the meaning assigned to such term in the Partnership Agreement.




          
“Change of Control” means with respect to any Person (the “Applicable
Person”), any of the following events: (a) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of the Applicable
Person’s assets to any other Person, unless immediately following such sale, lease, exchange or
other transfer such assets are owned, directly or indirectly, by the Applicable Person; (b) the
amalgamation, combination, consolidation or merger of the Applicable Person with or into another
Person pursuant to a transaction, or series of related transactions, other than any such
transaction(s) where (i) the holders of the Voting Securities of the Applicable Person immediately
prior to such transaction own, directly or indirectly, not less than a majority of the outstanding
Voting Securities of the surviving Person or its parent immediately after such transaction and (ii)
the board of directors of the surviving Person is comprised of a majority of persons who were
directors of the Applicable Person immediately prior to such transaction; or (c) a “person” or
“group” (within the meaning of Sections 13(d) or 14(d)(2) of the Exchange Act), other than QRC or
its Affiliates with respect to the General Partner, being or becoming the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of all of the then
outstanding Voting Securities of the Applicable Person, except in a merger or consolidation which
would not constitute a Change of Control under clause (b) above.








          
“Cherokee Basin” means the 13-county region in southeastern Kansas and northeastern
Oklahoma where the Assets are located.








          
“Closing Date” means the date of the closing of the Initial Offering.




          
“Commission” means the United States Securities and Exchange Commission.




          
“Common Unit” has the meaning assigned to such term in the Partnership Agreement.




          
“Conflicts Committee” has the meaning assigned to such term in the Partnership
Agreement.




          
“Contribution Agreement” means the Contribution, Conveyance and Assumption Agreement,
dated as of the Closing Date, by and among the Partnership, Quest Cherokee, LLC, the General
Partner, QRC and Quest Energy Service, LLC, together with any additional conveyance documents and
instruments contemplated or referenced therein.



2









 






          
“Covered Environmental Losses” means all environmental losses, damages, liabilities,
claims, demands, causes of action, judgments, settlements, fines, penalties, costs and expenses
(including, without limitation, costs and expenses of any Environmental Activity, court costs and
reasonable attorney’s and experts’ fees) of any and every kind or character, by reason of or
arising out of:




     (i) any violation or correction of violation, including, without limitation, performance of
any Environmental Activity, of Environmental Laws; or




     (ii) any event, omission or condition associated with ownership or operation of the Assets
(including, without limitation, the exposure to or presence of Hazardous Substances on, under,
about or migrating to or from the Assets or the exposure to or Release of Hazardous Substances
arising out of operation of the Assets or at non-Asset locations) including, without limitation,
(A) the cost and expense of any Environmental Activities, (B) the cost and expense of the
preparation and implementation of any closure, remedial or corrective action or other plans
required or necessary under Environmental Laws and (C) the cost and expense for any
environmental or toxic tort pre-trial, trial or appellate legal or litigation support work;
provided, in the case of clauses (A) and (B), such cost and expense shall not include
the costs of and associated with project management and soil and ground water monitoring.




          
“Environmental Activities” means any investigation, study, assessment, evaluation,
sampling, testing, monitoring, containment, removal, disposal, closure, corrective action,
remediation (regardless of whether active or passive), natural attenuation, restoration,
bioremediation, response, repair, corrective measure, cleanup, or abatement that is required or
necessary under any applicable Environmental Law, including, but not limited to, institutional or
engineering controls or participation in a governmental voluntary cleanup program to conduct
voluntary investigatory and remedial actions for the clean-up, removal or remediation of Hazardous
Substances that exceed actionable levels established pursuant to Environmental Laws, or
participation in a supplemental environmental project in partial or whole mitigation of a fine or
penalty.




          
“Environmental Laws” means all federal, state, and local laws, statutes, rules,
regulations, orders, judgments, ordinances, codes, injunctions, decrees, Environmental Permits and
other legally enforceable requirements and rules of common law relating to (a) pollution or
protection of human health and the environment or natural resources, including, without limitation,
the federal Comprehensive Environmental Response, Compensation and Liability Act, the Superfund
Amendments and Reauthorization Act, the Resource Conservation and Recovery Act, the Clean Air Act,
the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Oil
Pollution Act of 1990, the Hazardous Materials Transportation Act, the Marine Mammal Protection
Act, the Endangered Species Act, the National Environmental Policy Act, and other environmental
conservation and protection laws, each as amended through the Closing Date, (b) any Release or
threatened Release of, or any exposure of any Person or property to, any Hazardous Substances and
(c) the generation, manufacture, processing, distribution, use, treatment, storage, transport or
handling of any Hazardous Substances.



3









 






          
“Environmental Permit” means any permit, approval, identification number, license,
registration, consent, exemption, variance, or other authorization required under or issued
pursuant to any applicable Environmental Law.




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




          
“General Partner” has the meaning assigned to such term in the preamble.




          
“Hazardous Substance” means (a) any substance that is designated, defined or
classified as a hazardous waste, solid waste, hazardous material, pollutant, contaminant or toxic
or hazardous substance, or terms of similar meaning, or that is otherwise regulated under any
Environmental Law, including, without limitation, any hazardous substance as defined under the
Comprehensive Environmental Response, Compensation and Liability Act, as amended, (b) oil as
defined in the Oil Pollution Act of 1990, as amended, including oil, gasoline, natural gas, fuel
oil, motor oil, waste oil, diesel fuel, jet fuel and other refined petroleum hydrocarbons and
petroleum products and (c) radioactive materials, asbestos containing materials or polychlorinated
biphenyls.




          
“Indemnified Party” means either the Partnership Group or the QRC Entities, as the
case may be, in their capacity as the parties entitled to indemnification in accordance with
Article IV hereof.




          
“Indemnifying Party” means either the Partnership Group or QRC, as the case may be, in
their capacity as the parties from whom indemnification may be required in accordance with Article
IV.




          
“Initial Offering” has the meaning assigned to such term in the Partnership Agreement.




          
“License” has the meaning assigned to such term in Section 5.01 of this Agreement.




          
“Losses” means any losses, damages, liabilities, claims, demands, causes of action,
judgments, settlements, fines, penalties, costs and expenses (including, without limitation, court
costs and reasonable attorney’s and experts’ fees) of any and every kind or character.




          
“Name” has the meaning assigned to such term in Section 5.01 of this Agreement.




          
“Offer” has the meaning assigned to such term in Section 3.01 of this Agreement.




          
“Partnership” has the meaning assigned to such term in the preamble.




          
“Partnership Agreement” means the First Amended and Restated Agreement of Limited
Partnership of Quest Energy Partners, L.P., as such agreement is in effect on the Closing Date, to
which reference is hereby made for all purposes of this Agreement. No amendment or modification to
the Partnership Agreement subsequent to the Closing Date shall be given effect for the purposes of
this Agreement unless consented to by each of the Parties to this Agreement.




          
“Partnership Group” means the Partnership and any subsidiary of any such Person.



4









 






          
“Party” or “Parties” have the meaning assigned to such terms in the preamble.




          
“Person” means an individual or a corporation, limited liability company, partnership,
joint venture, trust, unincorporated organization, association, government agency or political
subdivision thereof or other entity.




          
“QRC” has the meaning assigned to such term in the preamble. 




          
“QRC Entities” means QRC and its subsidiaries, excluding the Partnership Group.




          
“Release” means any depositing, spilling, leaking, pumping, pouring, placing,
emitting, discarding, abandoning, emptying, discharging, migrating, injecting, escaping, leaching,
dumping or disposing into the environment.




          
“Retained Assets” means any upstream assets and investments owned by any of the QRC
Entities that were not conveyed, contributed or otherwise transferred, or required to be conveyed,
contributed or otherwise transferred, to the Partnership Group pursuant to the Contribution
Agreement and other documents relating to the transactions referred to in the Contribution
Agreement.




          
“subsidiary” means, with respect to any Person, (a) a corporation of which more than
50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to
vote in the election of directors or other governing body of such corporation is owned, directly or
indirectly, at the date of determination, by such Person, by one or more subsidiaries of such
Person or a combination thereof, (b) a partnership (whether general or limited) in which such
Person or a subsidiary of such Person is, at the date of determination, a general or limited
partner of such partnership, but only if more than 50% of the partnership interests of such
partnership (considering all of the partnership interests of the partnership as a single class) is
owned, directly or indirectly, at the date of determination, by such Person, by one or more
subsidiaries of such Person, or a combination thereof, or (c) any other Person (other than a
corporation or a partnership) in which such Person, one or more subsidiaries of such Person, or a
combination thereof, directly or indirectly, at the date of determination, has (i) at least a
majority ownership interest or (ii) the power to elect or direct the election of a majority of the
directors or other governing body of such Person.




          
“Voting Securities” means securities of any class of a Person entitling the holders
thereof to vote in the election of members of the board of directors or other similar governing
body of the Person.



5









 





ARTICLE II




REIMBURSEMENT OBLIGATIONS





          
Section 2.01 Reimbursement for Operating and General and Administrative Expenses.




          
(a) QRC hereby agrees to continue to provide, or cause to be provided, the Partnership Group
with general and administrative services, such as legal, accounting, treasury, insurance
administration and claims processing, risk management, health, safety and environmental,
information technology, human resources, credit, payroll, taxes, land management, engineering and
senior management oversight, that are substantially identical in nature and quality to the services
of such type previously provided by QRC and its Affiliates in connection with its management and
operation of the Assets during the one (1) year period prior to the Closing Date. For the
avoidance of doubt, incremental public company expenses of the Partnership, such as in connection
with preparation and filing of Commission reports, registration statements and other filings,
external audit, internal audit, transfer agent and registrar, legal, printing, unitholder reports,
and other related costs and expenses shall not be deemed to be expenses and expenditures for
general and administrative services.




          
(b) The Partnership Group hereby agrees to reimburse QRC and its Affiliates for all reasonable
expenses and expenditures QRC or its Affiliates incurs or payments it makes on behalf of the
Partnership Group for general and administrative services.




          
(c) The Partnership Group hereby agrees to reimburse QRC and its Affiliates for all reasonable
expenses and expenditures QRC or its Affiliates incurs or payments it makes on behalf of the
Partnership Group in connection with the business and operations of the Partnership Group,
including, but not limited to, (i) salaries of operational personnel performing services on the
Partnership Group’s behalf and the cost of employee benefits for such personnel, (ii) capital
expenditures, (iii) maintenance and repair costs, (iv) taxes and (v) incremental public company
expenses of the Partnership.




          
(d) The General Partner will be entitled to allocate any such expenses and expenditures
between the Partnership Group, on the one hand, and QRC, on the other hand, in accordance with the
foregoing provision on any reasonable basis.




          
Section 2.02 Reimbursement for Insurance. The Partnership Group hereby agrees to
reimburse QRC for all expenses QRC incurs or payments it makes on behalf of the Partnership Group
for insurance coverage with respect to (i) the Assets, (ii) claims related to fiduciary obligations
of officers, directors and control persons of the Partnership Group and (iii) claims under federal
and state securities laws related to any of the Partnership Group and any of the officers,
directors or control persons thereof.



6









 





ARTICLE III




BUSINESS OPPORTUNITIES





          
Section 3.01 Business Opportunities. If a QRC Entity acquires a Business Opportunity,
then not later than ninety (90) days after the consummation of the acquisition by such QRC Entity
of the Business Opportunity, the QRC Entity shall notify the Partnership in writing of such
acquisition and offer the Partnership Group the opportunity to purchase such Business Opportunity
for its fair market value in accordance with this Section 3.01 (the “Offer”). The Offer
must set forth the QRC Entity’s proposed terms relating to the purchase of the Business Opportunity
by the Partnership Group. The QRC Entity will provide all information concerning the business,
operations and finances of such Business Opportunity as may be reasonably requested by the
Partnership. As soon as practicable, but in any event within sixty (60) days after receipt of such
written notification, the Partnership shall notify the QRC Entity in writing that either (i) the
Partnership has elected (with the approval of the Conflicts Committee) not to cause a member of the
Partnership Group to purchase the Business Opportunity, in which event the QRC Entity is forever
free to continue to own or operate such Business Opportunity; or (ii) the Partnership has elected
(with the approval of the Conflicts Committee) to cause a member of the Partnership Group to
purchase the Business Opportunity, in which event the following procedures will apply:




          
(a) After the receipt of such Offer by the Partnership, the QRC Entity and the Partnership
shall negotiate in good faith the terms on which the Business Opportunity will be sold to a member
of the Partnership Group. If the QRC Entity and the Partnership (with the concurrence of the
Conflicts Committee) are able to agree on the fair market value of the Business Opportunity or the
other terms of the Offer within sixty (60) days after receipt by the Partnership of the Offer, a
member of the Partnership Group shall purchase the Business Opportunity for the agreed upon fair
market value as soon as commercially practicable after such agreement has been reached.




          
(b) If the QRC Entity and the Partnership (with the approval of the Conflicts Committee) are
unable to agree on the fair market value of the Business Opportunity or the other terms of the
Offer within sixty (60) days after receipt by the Partnership of the Offer, the QRC Entity and the
Partnership will engage a mutually agreed upon, nationally recognized investment banking firm to
determine the fair market value of the Business Opportunity. Such investment banking firm will
determine the fair market value of the Business Opportunity within thirty (30) days of its
engagement and furnish the QRC Entity and the Partnership its determination. The fees and expenses
of the investment banking firm will be split equally between the QRC Entity and the Partnership
Group. Once the investment banking firm has submitted its determination of the fair market value
of the Business Opportunity, the Partnership shall notify the QRC Entity in writing that either (i)
the Partnership has elected (with the approval of the Conflicts Committee) not to cause a member of
the Partnership Group to purchase the Business Opportunity or (ii) the Partnership has elected
(with the approval of the Conflicts Committee) to cause a member of the Partnership Group to
purchase the Business Opportunity, pursuant to the Offer as modified by the determination of the
investment banking firm. If the Partnership elects to cause a member of



7









 







the Partnership Group to purchase the Business Opportunity, then such member of the
Partnership Group will purchase the Business Opportunity pursuant to the Offer as modified by the
determination of the investment banking firm as soon as commercially practicable after such
determination. If the Partnership elects not to cause a member of the Partnership Group to
purchase the Business Opportunity, such QRC Entity is forever free to continue to own or operate
such Business Opportunity.




          
Section 3.02 Scope of Prohibition. Except as provided in this Article III and the
Partnership Agreement, each QRC Entity is free to engage in any business activity whatsoever,
including those that may be in direct competition with any member of the Partnership Group.




          
Section 3.03 Enforcement.




          
(a) QRC agrees and acknowledges that the Partnership Group does not have an adequate remedy at
law for the breach by the QRC Entities of the covenants and agreements set forth in this Article
III, and that any breach by the QRC Entities of the covenants and agreements set forth in this
Article III would result in irreparable injury to the Partnership Group. QRC further agrees and
acknowledges that any member of the Partnership Group may, in addition to the other remedies that
may be available to the Partnership Group, file a suit in equity to enjoin the QRC Entities from
such breach, and consent to the issuance of injunctive relief under this Agreement.




          
(b) If any court determines that any provision of this Article III is invalid or
unenforceable, the remainder of such provisions shall not thereby be affected and shall be given
full effect without regard to the invalid provision. If any court construes any provision of this
Article III, or any part thereof, to be unreasonable because of the duration of such provision or
the geographic scope thereof, such court shall have the power to reduce the duration or restrict
the geographic scope of such provision and to enforce such provision as so reduced or restricted.



ARTICLE IV




INDEMNIFICATION





          
Section 4.01 Environmental Indemnification.




          
(a) Subject to the provisions of Section 4.04 and Section 4.05 below, QRC shall indemnify,
defend and hold harmless the Partnership Group for a period of three (3) years from the Closing
Date from and against any Covered Environmental Losses suffered or incurred by the Partnership
Group relating to the Assets, but only to the extent that such violation, correction of violation,
event, omission or condition complained of under this Section 4.01(a) occurred or existed on or
before the date of this Agreement. Covered Environmental Losses shall not include any claim, loss
or expense arising from or related to the plugging and abandonment of wells associated with the
Assets upon the determination that such well or wells have reached its or their useful economic
life. As used herein, the term “plugging and abandonment” shall mean all plugging, replugging and
abandonment associated with the Assets, or any portion thereof, and including, but not limited to,
all plugging and abandonment, associated removal, disposal or restoration of the surface, site
clearance and disposal of the wells, structures and personal



8









 







property located on or associated with the Assets, the removal or capping and burying of all
associated flowlines, the recontouring of the surface in accordance with applicable laws or the
terms and conditions of applicable leases, licenses, franchises or contracts, site clearance and
any disposal of related waste materials or Hazardous Substances of the type ordinarily encountered
in oil and gas operations, but “plugging and abandonment” shall not include investigation or
remediation of soil, groundwater, or surface water contamination (requiring remediation or response
action under applicable Environmental Laws) exceeding the level of site restoration typically
required for normal plugging and abandonment activities.




          
(b) The Partnership Group shall jointly and severally indemnify, defend and hold harmless the
QRC Entities, other than any subsidiary constituting part of the Partnership Group, from and
against any Covered Environmental Losses suffered or incurred by the QRC Entities, other than any
subsidiary constituting part of the Partnership Group, relating to the Assets occurring after the
Closing Date, but only to the extent that such violation, correction of violation, event, omission
or condition complained of under this Section 4.01(b) occurred or existed after the date of this
Agreement, and to the extent that any of the foregoing are not Covered Environmental Losses for
which the Partnership Group is entitled to indemnification under Section 4.01(a) above.




          
Section 4.02 Additional Indemnification by QRC. QRC shall indemnify, defend and hold
harmless the Partnership Group from and against any Losses suffered or incurred by reason of or
arising from:




          
(a) all federal, state and local income tax liabilities attributable to the operation of the
Assets prior to the Closing Date, including any such income tax liabilities of the QRC Entities
that may result from the consummation of the formation transactions for the Partnership Group
occurring on or prior to the Closing Date, but excluding any federal, state and local income taxes
reserved on the books of the Partnership Group as of the Closing Date;




          
(b) the failure to convey good and defensible title to the Assets to one or more members of
the Partnership Group, subject only to encumbrances arising out of the existing credit facility to
which members of the Partnership Group are subject and other encumbrances that do not materially
adversely affect the value of the Assets or the ability of the Partnership Group to operate the
Assets in substantially the same manner as they were operated immediately prior to the Closing
Date; and




          
(c) events and conditions associated with the Retained Assets whether occurring before, on or
after the Closing Date;




provided, however, that in the case of clause (a) above, such indemnification
obligations shall terminate upon the expiration of any applicable statute of limitations and that
in the case of clause (b) above, such indemnification obligations shall survive for three (3) years
from the Closing Date.




          
Section 4.03 Additional Indemnification by the Partnership. In addition to, and not
in limitation of, the indemnification provided under this Article IV, the Partnership Group shall
indemnify, defend, and hold harmless the QRC Entities, other than any subsidiary constituting



9









 







part of the Partnership Group, from and against any Losses suffered or incurred by the QRC
Entities, other than any subsidiary constituting part of the Partnership Group, by reason of or
arising out of events and conditions associated with the operation of the Assets that occurs after
the Closing Date (other than Covered Environmental Losses, which are provided for under Section
4.01(b) above), unless such indemnification would not be permitted under the Partnership Agreement
by reason of one of the provisos contained in Section 7.7 of the Partnership Agreement.




          
Section 4.04 Limitations Regarding Indemnification. The aggregate liability of QRC in
respect of all Covered Environmental Losses under Section 4.01(a) shall not exceed $5,000,000.
Additionally, QRC shall not have any obligation under either Section 4.01(a) or Section 4.02(b)
until such Covered Environmental Losses or Losses, as applicable, exceed $500,000, and then only to
the extent such aggregate Covered Environmental Losses or Losses, as applicable, exceed $500,000.
Notwithstanding anything herein to the contrary, in no event will QRC have any indemnification
obligations under this Agreement for claims made as a result of additions to, or modifications of,
Environmental Laws promulgated after the Closing Date.




          
Section 4.05 Indemnification Procedures.




          
(a) The Indemnified Party agrees that within a reasonable period of time after it becomes
aware of facts giving rise to a claim for indemnification pursuant to this Article IV, it will
provide notice thereof in writing to the Indemnifying Party specifying the nature of and specific
basis for such claim; provided, however, that the Indemnified Party shall not
submit claims more frequently than once a calendar quarter (or twice, in the case of the last
calendar quarter prior to the expiration of the applicable indemnity coverage under this
Agreement).




          
(b) The Indemnifying Party shall have the right to control all aspects of the defense of (and
any counterclaims with respect to) any claims brought against the Indemnified Party that are
covered by the indemnification set forth in this Article IV, including, without limitation, the
selection of counsel, determination of whether to appeal any decision of any court and the settling
of any such matter or any issues relating thereto; provided, however, that no such
settlement shall be entered into without the consent (which consent shall not be unreasonably
withheld, conditioned or delayed) of the Indemnified Party unless it includes a full release of the
Indemnified Party from such matter or issues, as the case may be, and does not include the
admission of fault, culpability or failure to act, by or on behalf of such Indemnified Party.




          
(c) The Indemnified Party agrees to cooperate fully with the Indemnifying Party with respect
to all aspects of the defense of any claims covered by the indemnification set forth in this
Article IV, including, without limitation, the prompt furnishing to the Indemnifying Party of any
correspondence or other notice relating thereto that the Indemnified Party may receive, permitting
the name of the Indemnified Party to be utilized in connection with such defense, the making
available to the Indemnifying Party of any files, records or other information of the Indemnified
Party that the Indemnifying Party considers relevant to such defense and the making available to
the Indemnifying Party of any employees of the Indemnified Party; provided,
however, that in connection therewith the Indemnifying Party agrees to use reasonable
efforts to minimize the impact thereof on the operations of the Indemnified Party and further
agrees to



10









 







maintain the confidentiality of all files, records and other information furnished by the
Indemnified Party pursuant to this Section 4.05. In no event shall the obligation of the
Indemnified Party to cooperate with the Indemnifying Party as set forth in the immediately
preceding sentence be construed as imposing upon the Indemnified Party an obligation to hire and
pay for counsel in connection with the defense of any claims covered by the indemnification set
forth in this Article IV; provided, however, that the Indemnified Party may, at its
own option, cost and expense, hire and pay for counsel in connection with any such defense. The
Indemnifying Party agrees to keep any such counsel hired by the Indemnified Party reasonably
informed as to the status of any such defense, but the Indemnifying Party shall have the right to
retain sole control over such defense.




          
(d) In determining the amount of any loss, cost, damage or expense for which the Indemnified
Party is entitled to indemnification under this Agreement, the gross amount of the indemnification
will be reduced by (i) any insurance proceeds realized by the Indemnified Party, and such
correlative insurance benefit shall be net of any incremental insurance premium that becomes due
and payable by the Indemnified Party as a result of such claim and (ii) all amounts recovered by
the Indemnified Party under contractual indemnities from third Persons.




          
(e) The date on which notification of a claim for indemnification is received by the
Indemnifying Party shall determine whether such claim is timely made.



ARTICLE V




LICENSE





          
Section 5.01 Grant of License. Upon the terms and conditions set forth in this
Article V, QRC hereby grants and conveys to the Partnership Group and the General Partner, the
non-exclusive, worldwide right and license (“License”) to use the name “[Quest]”
(hereafter, the “Name”) and the Quest logo as set forth on Exhibit A (hereafter, the
“Mark”) on or in connection with the goods and services offered for sale by the Partnership Group;
provided, however, that neither the Partnership Group nor the General Partner shall
have the right to license the Name or Mark to any third Persons, but shall have the right to use
the Name and Mark solely in conjunction with goods and services provided by the Partnership Group.
Each of the GP and the Partnership Group agrees that it will not use the Name or Mark together with
the words “Resource” or “Midstream” in identifying any member of the Partnership Group or the GP.




          
Section 5.02 Use of Mark. The Partnership Group and the General Partner agree to use
the Mark only in compliance with the standards, specifications, directions, information and
know-how supplied by QRC. The Partnership Group and the General Partner agree to comply with any
requirements established by QRC concerning the style, design, display and use of the Mark, to
correctly use the trademark symbol TM, the service mark symbol SM or registration symbol
® with every use of the Mark, to use the registration symbol ® upon receiving
notice of registration of the Mark from QRC and to submit in advance of its use all advertising
copy, brochures or other materials incorporating the Mark to QRC for approval.



11









 






          
Section 5.03 Royalties. The Partnership Group and the General Partner shall pay no
royalties under this License.




          
Section 5.04 Duration; Termination.




          
(a) This License shall remain in full force and effect until it is terminated. At such time
as the General Partner is no longer an Affiliate of QRC or there is a Change of Control of the
Partnership, the license granted hereunder shall immediately terminate without further action of
any party.




          
(b) If the Partnership Group or the General Partner makes an assignment for the benefit of its
respective creditors or if the Partnership Group or the General Partner discontinues its business,
the License hereby granted shall automatically terminate forthwith without any notice whatsoever
being necessary. In the event this License is so terminated, the Partnership Group and the General
Partner, their respective representatives, trustees, agents, administrator, successors and/or
assigns shall immediately cease all further use of the Name and the Mark, including any use in
connection with any goods or services or any advertising, promotional or other materials pertaining
thereto, except with and under the special consent and instructions of QRC in writing, which
instructions it shall be obligated to follow.




          
Section 5.05 Right To Inspect; Quality Control. The Partnership Group and the General
Partner agree to submit to QRC from time to time and to permit QRC or its duly authorized
representative the right to inspect the use by the Partnership Group and the General Partner of the
Name and the Mark. When requested by QRC, each of the Partnership Group and the General Partner
agree to send samples of advertising and promotional materials utilizing the Name or the Mark and
any other documents which may permit QRC to determine whether its uses meet the standards,
specifications and directions approved by QRC. QRC shall have the right, at all reasonable times,
to monitor the use by the Partnership Group and the General Partner of the Name and the Mark,
including its use in connection with the goods and services of the Partnership Group identified by
the Name and the Mark to determine that they are of the proper quality.




          
Section 5.06 Ownership. The Partnership Group and the General Partner agree that
ownership of the Name and the Mark and the goodwill relating thereto shall remain vested in QRC
both during the term of this License and thereafter, and the Partnership Group and the General
Partner further agree never to challenge, contest or question the validity of QRC’s ownership of
the Name and the Mark or any registrations thereof by QRC. In connection with the use of the Name
and the Mark, the Partnership Group shall not in any manner represent that it has any ownership in
the Name and the Mark or registration thereof except as set forth herein, and the Partnership Group
acknowledges that the use of the Name and the Mark shall not create in the Partnership Group’s
favor any right, title or interest in or to the Name and the Mark, but all uses of the Name and the
Mark by the Partnership Group, and the goodwill derived therefrom, shall inure to benefit of QRC.




          
Section 5.07 Litigation. In the event the Partnership or any subsidiary thereof is
named as defendant in any action based on its use of the Name or the Mark, the Partnership Group



12









 







agrees to immediately notify QRC, and QRC shall have the right to intervene in any such action
and to control and direct the defense thereof, including the right to select defense counsel;
provided that, in the event QRC chooses to exercise control and if the Partnership Group
has complied with all of its obligations under this License, QRC shall reimburse Partnership for
the cost of its defense and to indemnify it against all damages arising therefrom.




          
Section 5.08 Indemnification By Partnership. 




          
(a) The Partnership hereby assumes all responsibility for and agrees to indemnify QRC against
any and all damages, losses, claims, suits or other expenses whatsoever arising out of the
Partnership Group’s promotion, advertising, use or sale of any services under the Name or the Mark,
including QRC’s reasonable attorneys’ fees incurred in the defense of any action against QRC.




          
(b) As used in this Section 5.08, and for purposes of determining liability to QRC, QRC shall
include all of the QRC Entities and their owners, directors, officers, employees, agents,
representatives, successors and assigns of QRC.




          
Section 5.09 Effect of Termination or Expiration. Upon and after the expiration or
termination of this License, all rights granted to the Partnership Group hereunder shall forthwith
revert to QRC. The Partnership Group will refrain from further use of the Name or any name deemed
by QRC to be similar to the Name or any further reference to it, direct or indirect, or use of any
mark deemed by QRC to be similar to the Mark, in connection with the Partnership Group’s goods and
services.




          
Section 5.10 QRC’s Remedies.




          
(a) The Partnership Group acknowledges that its failure to cease the use of the Name and the
Mark at the termination or expiration of this License will result in immediate and irremediable
damage to QRC and to the rights of any subsequent licensee of the Name and the Mark. The
Partnership Group acknowledges and admits that there is no adequate remedy at law for such failure
to cease manufacture, sale or distribution, and the Partnership Group agrees that in the event of
such failure QRC shall be entitled to equitable relief by way of temporary and permanent
injunctions and such other further relief as any court with jurisdiction may deem just and proper,
without being required to post a bond or other security.




          
(b) Resort to any remedies referred to herein shall not be construed as a waiver of any other
rights and remedies to which QRC may be entitled under this License or otherwise.




          
Section 5.11 Assignment. The rights and license granted under this License shall not
be assignable in any manner by the Partnership Group without QRC’s prior written consent. The
Partnership Group may not sublicense any of the rights granted herein. QRC may assign this License
and/or the Name or the Mark, but shall furnish written notice of such assignment to the
Partnership. This License will inure to the benefit of the parties and their respective heirs,
personal representatives, and permitted successors and assigns.



13









 





ARTICLE VI




MISCELLANEOUS





          
Section 6.01 Choice of Law. This Agreement is subject to and governed by the laws of
the State of Kansas, excluding any conflicts-of-law rule or principle that might refer the
construction or interpretation of this Agreement to the laws of another state.




          
Section 6.02 Notice. All notices or requests or consents provided for or permitted to
be given pursuant to this Agreement must be in writing and must be given by depositing same in the
United States mail, addressed to the Person to be notified, postpaid and registered or certified
with return receipt requested or by delivering such notice in person or by fax to such Party.
Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by
fax shall be effective upon actual receipt if received during the recipient’s normal business
hours, or at the beginning of the recipient’s next business day after receipt if not received
during the recipient’s normal business hours. All notices to be sent to a Party pursuant to this
Agreement shall be sent to or made at the address set forth below or at such other address as such
Party may provide to the other Parties in the manner provided in this Section 6.02.




	 	(a)	 	For notices to QRC:




Quest Resource Corporation

[9520 North May Avenue, Suite 300]

Oklahoma City, Oklahoma [73120]

Attn: Chief Executive Officer





	 	(b)	 	For notices to the Partnership:




Quest Energy Partners, L.P.

c/o Quest Energy GP, LLC

[9520 North May Avenue, Suite 300]

Oklahoma City, Oklahoma [73120]

Attn: Chief Executive Officer





          
Section 6.03 Entire Agreement. This Agreement constitutes the entire agreement of the
Parties relating to the matters contained herein, superseding all prior contracts or agreements,
whether oral or written, relating to the matters contained herein.




          
Section 6.04 Effect of Waiver or Consent. No waiver or consent, express or implied,
by any Party to or of any breach or default by any Person in the performance by such Person of its
obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other
breach or default in the performance by such Person of the same or any other obligations of such
Person hereunder. Failure on the part of a Party to complain of any act of any Person or to
declare any Person in default, irrespective of how long such failure continues, shall not
constitute a waiver by such Party of its rights hereunder until the applicable statute of
limitations period has run.



14









 






          
Section 6.05 Termination. Notwithstanding any other provision of this Agreement, if
the General Partner is removed as general partner of the Partnership under circumstances where
Cause does not exist and Common Units held by the General Partner and its Affiliates are not voted
in favor of such removal or if there is a Change of Control of the Partnership or of the General
Partner (excluding any such Change of Control which occurs solely as a result of a Change of
Control of QRC), this Agreement, other than the provisions set forth in Article IV hereof (together
with any corresponding definition contained in Article I hereof), may immediately thereupon be
terminated by QRC or the Partnership.




          
Section 6.06 Amendment or Modification. This Agreement may be amended, restated or
modified from time to time only by the written agreement of all the Parties; provided,
however, that no member of the Partnership Group may, without the prior approval of the
Conflicts Committee, agree to any amendment or modification of this Agreement that will adversely
affect the holders of Common Units. Each such instrument shall be reduced to writing and shall be
designated on its face an “Amendment,” “Addendum” or a “Restatement” to this Agreement.




          
Section 6.07 Assignment. Except as provided in section 5.11, no Party shall have the
right to assign its rights or obligations under this Agreement without the prior written consent of
all of the other Parties. This Agreement will bind and inure to the benefit of the Parties and to
their respective successors and assigns.




          
Section 6.08 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all signatory Parties had signed the same document. All
counterparts shall be construed together and shall constitute one and the same instrument.




          
Section 6.09 Severability. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be held invalid or unenforceable to any extent by a
court or regulatory body of competent jurisdiction, the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law. Upon such determination, the Parties
shall negotiate in good faith in an effort to agree upon a suitable and equitable provision to
effect the original intent of the Parties.




          
Section 6.10 Further Assurances. In connection with this Agreement and all
transactions contemplated by this Agreement, each Party agrees to execute and deliver such
additional documents and instruments and to perform such additional acts as may be necessary or
appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of
this Agreement and all such transactions.




          
Section 6.11 Third Party Beneficiaries. Each of the Parties hereto specifically
intends that QRC and each member comprising the Partnership Group, as applicable, whether or not a
Party to this Agreement, will be entitled to assert rights and remedies hereunder as third party
beneficiaries hereto with respect to those provisions of this Agreement affording a right, benefit
or privilege to any such entity. Except as provided in the preceding sentence, the provisions of
this Agreement are enforceable solely by the Parties to it, and no Common Unit holder or its
assignee or any other Person will have the right, separate and apart from the Partnership, to



15









 







enforce any provision of this Agreement or to compel any Party to this Agreement to comply
with its terms.




          
Section 6.12 Withholding or Granting of Consent. Except as expressly provided to the
contrary in this Agreement, each Party may, with respect to any consent or approval that it is
entitled to grant pursuant to this Agreement, grant or withhold such consent or approval in its
sole and uncontrolled discretion, with or without cause, and subject to such conditions as it shall
deem appropriate.




          
Section 6.13 Laws and Regulations. Notwithstanding any provision of this Agreement to
the contrary, no Party shall be required to take any act, or fail to take any act, under this
Agreement if the effect thereof would be to cause such Party to be in violation of any applicable
law, statute, rule or regulation.




          
Section 6.14 No Recourse Against Officers or Directors. For the avoidance of doubt,
the provisions of this Agreement shall not give rise to any right of recourse against any officer
or director of any QRC Entity or any of the Partnership Group.




          
Section 6.15 Construction. Unless the context requires otherwise: (a) any pronoun
used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice versa; (b) references
to Articles and Sections refer to Articles and Sections of this Agreement; and (c) the term
“include” or “includes” means includes, without limitation, and “including” means including,
without limitation.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




16









 









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



	 	 	 	 	 	 	 	 	 
	 	 	QUEST ENERGY PARTNERS, L.P.
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	QUEST ENERGY GP, LLC, its general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Jerry D. Cash	 	 
	 

	 	 	 	Title:
	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	QUEST ENERGY GP, LLC
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Jerry D. Cash
	 	 	Title:	 	Chief Executive Officer
	 
	 	 	 	 	 	 	 	 
	 	 	QUEST RESOURCE CORPORATION
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Jerry D. Cash
	 	 	Title:	 	Chief Executive Officer






17









 






Exhibit A




Quest Logo










18