exv10w3



 





Exhibit 10.3




EXECUTION VERSION




Second Amended and Restated

Agreement of Limited Partnership

Quest Midstream Partners, L.P.




November 1, 2007




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I.
	 	 	 	 
	     Definitions
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Construction
	 	 	24	 
	 
	 	 	 	 
	ARTICLE II.
	 	 	 	 
	Organization
	 	 	 	 
	Section 2.1 Formation
	 	 	24	 
	Section 2.2 Name
	 	 	25	 
	Section 2.3 Registered Office; Registered Agent; Principal Office; Other Offices
	 	 	25	 
	Section 2.4 Purpose and Business
	 	 	25	 
	Section 2.5 Powers
	 	 	25	 
	Section 2.6 Power of Attorney
	 	 	26	 
	Section 2.7 Term
	 	 	27	 
	Section 2.8 Title to Partnership Assets
	 	 	27	 
	 
	 	 	 	 
	ARTICLE III.
	 	 	 	 
	Rights of Limited Partners
	 	 	 	 
	Section 3.1 Limitation of Liability
	 	 	27	 
	Section 3.2 Management of Business
	 	 	28	 
	Section 3.3 Outside Activities of the Limited Partners
	 	 	28	 
	Section 3.4 Rights of Limited Partners
	 	 	28	 
	 
	 	 	 	 
	ARTICLE IV.
	 	 	 	 
	Certificates; Record Holders; Transfer of Partnership Interests;
	 	 	 	 
	Redemption of Partnership Interests
	 	 	 	 
	Section 4.1 Certificates
	 	 	29	 
	Section 4.2 Mutilated, Destroyed, Lost or Stolen Certificates
	 	 	29	 
	Section 4.3 Record Holders
	 	 	30	 
	Section 4.4 Transfer Generally
	 	 	31	 
	Section 4.5 Registration and Transfer of Limited Partner Interests
	 	 	31	 
	Section 4.6 Transfer of the General Partner’s General Partner Interest
	 	 	32	 
	Section 4.7 Transfer of Incentive Distribution Rights
	 	 	33	 
	Section 4.8 Restrictions on Transfers
	 	 	33	 
	Section 4.9 Citizenship Certificates; Non-citizen Assignees
	 	 	35	 
	Section 4.10 Redemption of Partnership Interests of Non-citizen Assignees
	 	 	35	 
	Section 4.11 Taxation Certifications; Ineligible Assignees
	 	 	37	 
	Section 4.12 Redemption of Partnership Interests of Ineligible Assignees
	 	 	38	 
	 
	 	 	 	 
	ARTICLE V.
	 	 	 	 
	Capital Contributions and Issuance of Partnership Interests
	 	 	 	 
	Section 5.1 Organizational Contributions
	 	 	39	 






 









 






	 	 	 	 	 
	 	 	Page	 
	Section 5.2 Contributions by QRC and the General Partner
	 	 	39	 
	Section 5.3 Contributions by Initial Limited Partners and Second Round Private
Purchasers
	 	 	40	 
	Section 5.4 Interest and Withdrawal
	 	 	40	 
	Section 5.5 Capital Accounts
	 	 	40	 
	Section 5.6 Issuances of Additional Partnership Securities
	 	 	43	 
	Section 5.7 Conversion of Class A Subordinated Units
	 	 	45	 
	Section 5.8 Conversion of Class B Subordinated Units
	 	 	45	 
	Section 5.9 Limited Preemptive Right
	 	 	47	 
	Section 5.10 Splits and Combinations
	 	 	47	 
	Section 5.11 Fully Paid and Non-Assessable Nature of Limited Partner Interests
	 	 	48	 
	Section 5.12 Issuance of Class C Units in Connection with Reset of Incentive Distribution Rights
	 	 	48	 
	 
	 	 	 	 
	ARTICLE VI.
	 	 	 	 
	Allocations and Distributions
	 	 	 	 
	Section 6.1 Allocations for Capital Account Purposes
	 	 	50	 
	Section 6.2 Allocations for Tax Purposes
	 	 	58	 
	Section 6.3 Requirement and Characterization of Distributions; Distributions to Record Holders

	 	 	61	 
	Section 6.4 Distributions of Available Cash from Operating Surplus
	 	 	62	 
	Section 6.5 Distributions of Available Cash from Capital Surplus
	 	 	65	 
	Section 6.6 Adjustment of Minimum Quarterly Distribution and Target Distribution Levels
	 	 	65	 
	Section 6.7 Special Provisions Relating to the Holders of Subordinated Units and Class C Units
	 	 	65	 
	Section 6.8 Special Provisions Relating to the Holders of Incentive Distribution Rights
	 	 	67	 
	Section 6.9 Entity-Level Taxation
	 	 	67	 
	 
	 	 	 	 
	ARTICLE VII.
	 	 	 	 
	Management and Operation of Business
	 	 	 	 
	Section 7.1 Management
	 	 	68	 
	Section 7.2 Certificate of Limited Partnership
	 	 	70	 
	Section 7.3 Restrictions on the General Partner’s Authority
	 	 	70	 
	Section 7.4 Reimbursement of the General Partner
	 	 	71	 
	Section 7.5 Outside Activities
	 	 	71	 
	Section 7.6 Loans from the General Partner; Loans or Contributions from the Partnership or Group Members
	 	 	72	 
	Section 7.7 Indemnification
	 	 	73	 
	Section 7.8 Liability of Indemnitees
	 	 	75	 
	Section 7.9 Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties
	 	 	75	 
	Section 7.10 Other Matters Concerning the General Partner
	 	 	77	 
	Section 7.11 Purchase or Sale of Partnership Securities
	 	 	77	 
	Section 7.12 Registration Rights of the General Partner and its Affiliates
	 	 	78	 
	Section 7.13 Reliance by Third Parties
	 	 	81	 






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	 	 	Page	 
	ARTICLE VIII.
	 	 	 	 
	Books, Records, Accounting and Reports
	 	 	 	 
	Section 8.1 Records and Accounting
	 	 	82	 
	Section 8.2 Fiscal Year
	 	 	82	 
	Section 8.3 Reports
	 	 	82	 
	 
	 	 	 	 
	ARTICLE IX.
	 	 	 	 
	Tax Matters
	 	 	 	 
	Section 9.1 Tax Returns and Information
	 	 	83	 
	Section 9.2 Tax Elections
	 	 	83	 
	Section 9.3 Tax Controversies
	 	 	83	 
	Section 9.4 Withholding
	 	 	83	 
	 
	 	 	 	 
	ARTICLE X.
	 	 	 	 
	Admission of Partners
	 	 	 	 
	Section 10.1 Admission of Initial Limited Partners
	 	 	84	 
	Section 10.2 Admission of Limited Partners
	 	 	84	 
	Section 10.3 Admission of Successor General Partner
	 	 	85	 
	Section 10.4 Amendment of Agreement and Certificate of Limited Partnership
	 	 	85	 
	 
	 	 	 	 
	ARTICLE XI.
	 	 	 	 
	Withdrawal or Removal of Partners
	 	 	 	 
	Section 11.1 Withdrawal of the General Partner
	 	 	85	 
	Section 11.2 Removal of the General Partner
	 	 	87	 
	Section 11.3 Interest of Departing General Partner and Successor General Partner
	 	 	87	 
	Section 11.4 Termination of Subordination Period, Conversion of Subordinated Units
and Extinguishment of Cumulative Common Unit Arrearages
	 	 	89	 
	Section 11.5 Withdrawal of Limited Partners
	 	 	89	 
	 
	 	 	 	 
	ARTICLE XII.
	 	 	 	 
	Dissolution and Liquidation
	 	 	 	 
	Section 12.1 Dissolution
	 	 	89	 
	Section 12.2 Continuation of the Business of the Partnership After Dissolution
	 	 	90	 
	Section 12.3 Liquidator
	 	 	90	 
	Section 12.4 Liquidation
	 	 	91	 
	Section 12.5 Cancellation of Certificate of Limited Partnership
	 	 	92	 
	Section 12.6 Return of Contributions
	 	 	92	 
	Section 12.7 Waiver of Partition
	 	 	92	 
	Section 12.8 Capital Account Restoration
	 	 	92	 
	 
	 	 	 	 
	ARTICLE XIII.
	 	 	 	 
	Amendment of Partnership Agreement; Meetings; Record Date
	 	 	 	 
	Section 13.1 Amendments to be Adopted Solely by the General Partner
	 	 	92	 
	Section 13.2 Amendment Procedures
	 	 	94	 
	Section 13.3 Amendment Requirements
	 	 	94	 
	Section 13.4 Special Meetings
	 	 	95	 
	Section 13.5 Notice of a Meeting
	 	 	95	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 13.6 Record Date
	 	 	95	 
	Section 13.7 Adjournment
	 	 	96	 
	Section 13.8 Waiver of Notice; Approval of Meeting; Approval of Minutes
	 	 	96	 
	Section 13.9 Quorum and Voting
	 	 	96	 
	Section 13.10 Conduct of a Meeting
	 	 	97	 
	Section 13.11 Action Without a Meeting
	 	 	97	 
	Section 13.12 Right to Vote and Related Matters
	 	 	98	 
	 
	 	 	 	 
	ARTICLE XIV.
	 	 	 	 
	Merger, Consolidation or Conversion
	 	 	 	 
	Section 14.1 Authority
	 	 	98	 
	Section 14.2 Procedure for Merger, Consolidation or Conversion
	 	 	98	 
	Section 14.3 Approval by Limited Partners
	 	 	100	 
	Section 14.4 Certificate of Merger
	 	 	101	 
	Section 14.5 Effect of Merger, Consolidation or Conversion
	 	 	102	 
	 
	 	 	 	 
	ARTICLE XV.
	 	 	 	 
	Right to Acquire Limited Partner Interests
	 	 	 	 
	Section 15.1 Right to Acquire Limited Partner Interests
	 	 	103	 
	 
	 	 	 	 
	ARTICLE XVI.
	 	 	 	 
	General Provisions
	 	 	 	 
	Section 16.1 Addresses and Notices
	 	 	104	 
	Section 16.2 Further Action
	 	 	105	 
	Section 16.3 Binding Effect
	 	 	105	 
	Section 16.4 Integration
	 	 	105	 
	Section 16.5 Creditors
	 	 	105	 
	Section 16.6 Waiver
	 	 	105	 
	Section 16.7 Third-Party Beneficiaries
	 	 	105	 
	Section 16.8 Counterparts
	 	 	106	 
	Section 16.9 Applicable Law
	 	 	106	 
	Section 16.10 Invalidity of Provisions
	 	 	106	 
	Section 16.11 Consent of Partners
	 	 	106	 
	Section 16.12 Facsimile Signatures
	 	 	106	 






iv









 





Second Amended and Restated

Agreement of Limited Partnership

of

Quest Midstream Partners, L.P.




     This Second Amended and Restated Agreement of Limited Partnership of Quest Midstream Partners,
L.P., dated as of November 1, 2007, is entered into by and between Quest Midstream GP, LLC, a
Delaware limited liability company, as the General Partner, and the Limited Partners identified on
Schedule A hereof, and any other Persons who become Partners in the Partnership or parties
hereto as provided herein. In consideration of the covenants, conditions and agreements contained
herein, the parties hereto hereby agree to amend and restate the First Amended and Restated
Agreement of Limited Partnership of Quest Midstream Partners, L.P. as follows:



RECITALS




     WHEREAS, on December 22, 2006, the General Partner, the Organizational Limited Partner, the
existing Limited Partners and the new Limited Partners entered into that First Amended and Restated
Agreement of Limited Partnership of the Partnership; and



     WHEREAS, the General Partner and holders of a Unit Majority desire to amend and restate the
First Amended and Restated Agreement of Limited Partnership of the Partnership in order to add
additional Limited Partners and to make other changes to the First Amended and Restated Agreement
of Limited Partnership of the Partnership;



     NOW, THEREFORE, BE IT RESOLVED, the General Partner and holders of a Unit Majority hereby
amend and restate in its entirety the First Amended and Restated Agreement of Limited Partnership
of the Partnership with this Second Amended and Restated Agreement of Limited Partnership of the
Partnership.



ARTICLE I.




Definitions




     Section 1.1 Definitions.



     The following definitions shall be for all purposes, unless otherwise clearly indicated to the
contrary, applied to the terms used in this Agreement.



     “Acquisition” means any transaction in which any Group Member acquires (through an asset
acquisition, merger, stock acquisition or other form of investment) control over all or a portion
of the assets, properties or business of another Person for the purpose of increasing the operating
capacity or revenues of the Partnership Group from the operating capacity or revenues of the
Partnership Group existing immediately prior to such transaction; provided, however, that any
acquisition of properties or assets of another Person that is made solely for temporary investment
purposes shall not constitute an Acquisition.



1









 





     “Additional Book Basis” means the portion of any remaining Carrying Value of an Adjusted
Property that is attributable to positive adjustments made to such Carrying Value as a result of
Book-Up Events. For purposes of determining the extent that Carrying Value constitutes Additional
Book Basis:




     (a) Any negative adjustment made to the Carrying Value of an Adjusted Property as a
result of either a Book-Down Event or a Book-Up Event shall first be deemed to offset or
decrease that portion of the Carrying Value of such Adjusted Property that is attributable
to any prior positive adjustments made thereto pursuant to a Book-Up Event or Book-Down
Event.




     (b) If Carrying Value that constitutes Additional Book Basis is reduced as a result of
a Book-Down Event and the Carrying Value of other property is increased as a result of such
Book-Down Event, an allocable portion of any such increase in Carrying Value shall be
treated as Additional Book Basis; provided, that the amount treated as Additional Book Basis
pursuant hereto as a result of such Book-Down Event shall not exceed the amount by which the
Aggregate Remaining Net Positive Adjustments after such Book-Down Event exceeds the
remaining Additional Book Basis attributable to all of the Partnership’s Adjusted Property
after such Book-Down Event (determined without regard to the application of this clause (b)
to such Book-Down Event).



     “Additional Book Basis Derivative Items” means any Book Basis Derivative Items that are
computed with reference to Additional Book Basis. To the extent that the Additional Book Basis
attributable to all of the Partnership’s Adjusted Property as of the beginning of any taxable
period exceeds the Aggregate Remaining Net Positive Adjustments as of the beginning of such period
(the “Excess Additional Book Basis”), the Additional Book Basis Derivative Items for such period
shall be reduced by the amount that bears the same ratio to the amount of Additional Book Basis
Derivative Items determined without regard to this sentence as the Excess Additional Book Basis
bears to the Additional Book Basis as of the beginning of such period.



     “Adjusted Capital Account” means the Capital Account maintained for each Partner as of the end
of each fiscal year of the Partnership, (a) increased by any amounts that such Partner is obligated
to restore under the standards set by Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (or is
deemed obligated to restore under Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5)) and
(b) decreased by (i) the amount of all losses and deductions that, as of the end of such fiscal
year, are reasonably expected to be allocated to such Partner in subsequent years under Sections
704(e)(2) and 706(d) of the Code and Treasury Regulation Section 1.751-1(b)(2)(ii), and (ii) the
amount of all distributions that, as of the end of such fiscal year, are reasonably expected to be
made to such Partner in subsequent years in accordance with the terms of this Agreement or
otherwise to the extent they exceed offsetting increases to such Partner’s Capital Account that are
reasonably expected to occur during (or prior to) the year in which such distributions are
reasonably expected to be made (other than increases as a result of a minimum gain chargeback
pursuant to Section 6.1(d)(i) or Section 6.1(d)(ii)). The foregoing definition of
Adjusted Capital Account is intended to comply with the provisions of Treasury Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. The “Adjusted Capital
Account” of a Partner in respect of a General Partner Unit, a Common Unit, a Subordinated Unit, a
Class C Unit or an Incentive Distribution Right or any other Partnership



2









 




Interest shall be the amount that such Adjusted Capital Account would be if such General
Partner Unit, Common Unit, Subordinated Unit, Class C Unit, Incentive Distribution Right or other
Partnership Interest were the only interest in the Partnership held by such Partner from and after
the date on which such General Partner Unit, Common Unit, Subordinated Unit, Class C Unit,
Incentive Distribution Right or other Partnership Interest was first issued.




     “Adjusted Operating Surplus” means, with respect to any period, Operating Surplus generated
with respect to such period (a) less (i) any net increase in Working Capital Borrowings with
respect to such period and (ii) any net decrease in cash reserves for Operating Expenditures with
respect to such period not relating to an Operating Expenditure made with respect to such period,
and (b) plus (i) any net decrease in Working Capital Borrowings with respect to such period, (ii)
any net decrease made in subsequent periods in cash reserves for Operating Expenditures initially
established with respect to such period to the extent such decrease results in a reduction in
Adjusted Operating Surplus in subsequent periods under clause (a) above and (iii) any net increase
in cash reserves for Operating Expenditures with respect to such period to the extent such reserve
is required by any debt instrument for the repayment of principal, interest or premium. Adjusted
Operating Surplus does not include that portion of Operating Surplus included in clause (a)(i) of
the definition of Operating Surplus.



     “Adjusted Property” means any property the Carrying Value of which has been adjusted pursuant
to Section 5.5(d)(i) or Section 5.5(d)(ii).



     “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. For the avoidance of doubt, as
of the Closing Date, the Initial Private Purchasers are not “Affiliates” of the Partnership Group.



     “Aggregate Quantity of Class C Units” has the meaning assigned to such term in
Section 5.12(a).



     “Aggregate Remaining Net Positive Adjustments” means, as of the end of any taxable period, the
sum of the Remaining Net Positive Adjustments of all the Partners.



     “Agreed Allocation” means any allocation, other than a Required Allocation, of an item of
income, gain, loss or deduction pursuant to the provisions of Section 6.1, including a
Curative Allocation (if appropriate to the context in which the term “Agreed Allocation” is used).



     “Agreed Value” of any Contributed Property means the fair market value of such property or
other consideration at the time of contribution as determined by the General Partner. The General
Partner shall use such method as it determines to be appropriate to allocate the aggregate Agreed
Value of Contributed Properties contributed to the Partnership in a single or integrated
transaction among each separate property on a basis proportional to the fair market value of each
Contributed Property.



3









 





     “Agreement” means this Second Amended and Restated Agreement of Limited Partnership of Quest
Midstream Partners, L.P., as it may be amended, supplemented or restated from time to time.



     “Approved Working Capital Facility” means a credit facility or other arrangement entered into
by one or more of the Group Members subsequent to the Closing Date that will provide the
Partnership with an ability to make borrowings used solely for working capital purposes or to pay
distributions to the Limited Partners; provided that the terms and conditions of such facility
shall be approved by the Investor Representatives.



     “Associate” means, when used to indicate a relationship with any Person, (a) any corporation
or organization of which such Person is a director, officer or partner or is, directly or
indirectly, the owner of 20% or more of any class of voting stock or other voting interest; (b) any
trust or other estate in which such Person has at least a 20% beneficial interest or as to which
such Person serves as trustee or in a similar fiduciary capacity; and (c) any relative or spouse of
such Person, or any relative of such spouse, who has the same principal residence as such Person.
For the avoidance of doubt, as of the Closing Date, the Initial Private Purchasers are not
“Associates” of the Partnership Group.



     “Available Cash” means, with respect to any Quarter ending prior to the Liquidation Date:




     (a) the sum of (i) all cash and cash equivalents of the Partnership Group (or the
Partnership’s proportionate share of cash and cash equivalents in the case of Subsidiaries
that are not wholly owned) on hand at the end of such Quarter, and (ii) all additional cash
and cash equivalents of the Partnership Group (or the Partnership’s proportionate share of
cash and cash equivalents in the case of Subsidiaries that are not wholly owned) on hand on
the date of determination of Available Cash with respect to such Quarter resulting from
Working Capital Borrowings made subsequent to the end of such Quarter, less




     (b) the amount of any cash reserves established by the General Partner to (i) provide
for the proper conduct of the business of the Partnership Group (including reserves for
future capital expenditures and for anticipated future credit needs of the Partnership
Group) subsequent to such Quarter, (ii) comply with applicable law or any loan agreement,
security agreement, mortgage, debt instrument or other agreement or obligation to which any
Group Member is a party or by which it is bound or its assets are subject or (iii) provide
funds for distributions under Section 6.4 or Section 6.5 in respect of any
one or more of the next four Quarters; provided, however, that the General Partner may not
establish cash reserves pursuant to (iii) above if the effect of such reserves would be that
the Partnership is unable to distribute the Minimum Quarterly Distribution on all Common
Units, plus any Cumulative Common Unit Arrearage on all Common Units, with respect to such
Quarter; and, provided further, that disbursements made by a Group Member or cash reserves
established, increased or reduced after the end of such Quarter but on or before the date of
determination of Available Cash with respect to such Quarter shall be deemed to have been
made, established, increased or reduced, for purposes of determining Available Cash, within
such Quarter if the General Partner so determines.



4









 





     Notwithstanding the foregoing, “Available Cash” with respect to the Quarter in which the
Liquidation Date occurs and any subsequent Quarter shall equal zero.



     “Bluestem” means Bluestem Pipeline, LLC, a Delaware limited liability company, the membership
interests of which were acquired by the Partnership pursuant to the Contribution Agreement, and any
successors thereto.



     “Board of Directors” means, with respect to the Board of Directors of the General Partner, its
board of directors or managers, as applicable, if a corporation or limited liability company, or if
a limited partnership, the board of directors or board of managers of the general partner of the
General Partner.



     “Book Basis Derivative Items” means any item of income, deduction, gain or loss included in
the determination of Net Income or Net Loss that is computed with reference to the Carrying Value
of an Adjusted Property (e.g., depreciation, depletion, or gain or loss with respect to an Adjusted
Property).



     “Book-Down Event” means an event that triggers a negative adjustment to the Capital Accounts
of the Partners pursuant to Section 5.5(d).



     “Book-Tax Disparity” means with respect to any item of Contributed Property or Adjusted
Property, as of the date of any determination, the difference between the Carrying Value of such
Contributed Property or Adjusted Property and the adjusted basis thereof for federal income tax
purposes as of such date. A Partner’s share of the Partnership’s Book-Tax Disparities in all of
its Contributed Property and Adjusted Property will be reflected by the difference between such
Partner’s Capital Account balance as maintained pursuant to Section 5.5 and the
hypothetical balance of such Partner’s Capital Account computed as if it had been maintained
strictly in accordance with federal income tax accounting principles.



     “Book-Up Event” means an event that triggers a positive adjustment to the Capital Accounts of
the Partners pursuant to Section 5.5(d).



     “Business Day” means Monday through Friday of each week, except that a legal holiday
recognized as such by the government of the United States of America or the State of Oklahoma shall
not be regarded as a Business Day.



     “Capital Account” means the capital account maintained for a Partner pursuant to
Section 5.5. The “Capital Account” of a Partner in respect of a General Partner Unit, a
Common Unit, a Subordinated Unit, a Class C Unit, an Incentive Distribution Right or any
Partnership Interest shall be the amount that such Capital Account would be if such General Partner
Unit, Common Unit, Subordinated Unit, Class C Unit, Incentive Distribution Right or other
Partnership Interest were the only interest in the Partnership held by such Partner from and after
the date on which such General Partner Unit, Common Unit, Subordinated Unit, Class C Unit,
Incentive Distribution Right or other Partnership Interest was first issued.



     “Capital Contribution” means any cash, cash equivalents or the Net Agreed Value of Contributed
Property that a Partner contributes to the Partnership.



5









 





     “Capital Improvement” means any (a) addition or improvement to the capital assets owned by any
Group Member, (b) acquisition of existing, or the construction of new, capital assets (including
gathering lines, treating facilities, processing plants, fractionation facilities, pipelines,
terminals, docks, truck racks, tankage and other storage, distribution or transportation facilities
and related or similar midstream assets) or (c) capital contributions by a Group Member to a Person
that is not a Subsidiary in which a Group Member has an equity interest to fund such Group Member’s
pro rata share of the cost of the acquisition of existing, or the construction of new, capital
assets (including gathering lines, treating facilities, processing plants, fractionation
facilities, pipelines, terminals, docks, truck racks, tankage and other storage, distribution or
transportation facilities and related or similar midstream assets) by such Person, in each case if
such addition, improvement, acquisition or construction is made to increase the operating capacity
or revenues of the assets of the Partnership Group, in the case of clauses (a) and (b), or such
Person, in the case of clause (c), from the operating capacity or revenues of the Partnership Group
or such Person, as the case may be, existing immediately prior to such addition, improvement,
acquisition or construction; provided, however, that any such addition, improvement, acquisition or
construction that is made solely for temporary investment purposes shall not constitute a Capital
Improvement.



     “Capital Surplus” has the meaning assigned to such term in Section 6.3(a).



     “Carrying Value” means (a) with respect to a Contributed Property, the Agreed Value of such
property reduced (but not below zero) by all depreciation, amortization and cost recovery
deductions charged to the Partners’ Capital Accounts in respect of such Contributed Property, and
(b) with respect to any other Partnership property, the adjusted basis of such property for federal
income tax purposes, all as of the time of determination. The Carrying Value of any property shall
be adjusted from time to time in accordance with Section 5.5(d)(i) and
Section 5.5(d)(ii) and to reflect changes, additions or other adjustments to the Carrying
Value for dispositions and acquisitions of Partnership properties, as deemed appropriate by the
General Partner.



     “Cause” means a court of competent jurisdiction has entered a final, non-appealable judgment
finding the General Partner liable for actual fraud or willful misconduct in its capacity as a
general partner of the Partnership.



     “Certificate” means (a) a certificate (i) substantially in the form of Exhibit A to
this Agreement, (ii) issued in global form in accordance with the rules and regulations of the
Depositary or (iii) in such other form as may be adopted by the General Partner, issued by the
Partnership evidencing ownership of one or more Common Units or (b) a certificate, in such form as
may be adopted by the General Partner, issued by the Partnership evidencing ownership of one or
more other Partnership Securities.



     “Certificate of Limited Partnership” means the Certificate of Limited Partnership of the
Partnership filed with the Secretary of State of the State of Delaware as referenced in
Section 7.2, as such Certificate of Limited Partnership may be amended, supplemented or
restated from time to time.



6









 





     “Citizenship Certification” means a properly completed certificate in such form as may be
specified by the General Partner by which a Limited Partner certifies that he (and if he is a
nominee holding for the account of another Person, that to the best of his knowledge such other
Person) is an Eligible Citizen.



     “claim” (as used in Section 7.12(d)) has the meaning assigned to such term in
Section 7.12(d).



     “Class A Subordinated Unit” means a Partnership Security representing a fractional part of the
Partnership Interests of all Limited Partners and having the rights and obligations specified with
respect to Class A Subordinated Units in this Agreement.



     “Class B Subordinated Unit” means a Partnership Security representing a fractional part of the
Partnership Interests of all Limited Partners and having the rights and obligations specified with
respect to Class B Subordinated Units in this Agreement.



     “Class C Unit” means a Partnership Security representing a fractional part of the Partnership
Interests of all Limited Partners and having the rights and obligations specified with respect to
Class C Units in this Agreement.



     “Closing Date” means the date on which the transactions contemplated by the Purchase Agreement
were consummated.



     “Closing Price” has the meaning assigned to such term in Section 15.1(a).



     “Code” means the Internal Revenue Code of 1986, as amended and in effect from time to time.
Any reference herein to a specific section or sections of the Code shall be deemed to include a
reference to any corresponding provision of any successor law.



     “Combined Interest” has the meaning assigned to such term in Section 11.3(a).



     “Commences Commercial Service” refers to the date a Capital Improvement is first put into
commercial service following completion of construction and testing.



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



     “Commodity Hedge Contract” means any commodity exchange, swap, forward, cap, floor, collar or
other similar agreement or arrangement entered into for the purpose of hedging the Partnership
Group’s exposure to fluctuations in the price of hydrocarbons (including liquefied natural gas or
liquefied petroleum gas) in their operations and not for speculative purposes.



     “Common Unit” means a Partnership Security representing a fractional part of the Partnership
Interests of all Limited Partners and having the rights and obligations specified with respect to
Common Units in this Agreement. The term “Common Unit” does not include a Subordinated Unit or
Class C Unit prior to its conversion into a Common Unit pursuant to the terms hereof.



7









 





     “Common Unit Arrearage” means, with respect to any Common Unit, whenever issued, as to any
Quarter within the Subordination Period, the excess, if any, of (a) the Minimum Quarterly
Distribution with respect to a Common Unit in respect of such Quarter over (b) the sum of all
Available Cash distributed with respect to a Common Unit in respect of such Quarter pursuant to
Section 6.4(a)(i).



     “Conflicts Committee” means a committee of the Board of Directors of the General Partner
composed entirely of two or more directors, each of whom (a) is not a security holder, officer or
employee of the General Partner, (b) is not an officer, director or employee of any Affiliate of
the General Partner, (c) is not a holder of any ownership interest in the Partnership Group other
than Common Units and (d) meets the independence standards required of directors who serve on an
audit committee of a board of directors established by the Securities Exchange Act and the rules
and regulations of the Commission thereunder and by the Nasdaq Global Market.



     “Contributed Property” means each property or other asset, in such form as may be permitted by
the Delaware Act, but excluding cash, contributed to the Partnership. Once the Carrying Value of a
Contributed Property is adjusted pursuant to Section 5.5(d), such property shall no longer
constitute a Contributed Property, but shall be deemed an Adjusted Property.



     “Contribution Agreement” means that certain Contribution, Conveyance and Assumption Agreement,
dated as of the Closing Date, among the General Partner, the Partnership, Bluestem and the other
parties named therein, together with the additional conveyance documents and instruments
contemplated or referenced thereunder, as such may be amended, supplemented or restated from time
to time.



     “Converted Common Units” has the meaning assigned to such term in
Section 6.1(d)(x)(B).



     “Cumulative Common Unit Arrearage” means, with respect to any Common Unit, whenever issued,
and as of the end of any Quarter, the excess, if any, of (a) the sum resulting from adding together
the Common Unit Arrearage as to an Initial Common Unit for each of the Quarters within the
Subordination Period ending on or before the last day of such Quarter over (b) the sum of any
distributions theretofore made pursuant to Section 6.4(a)(ii) and the second sentence of
Section 6.5 with respect to an Initial Common Unit (including any distributions to be made
in respect of the last of such Quarters).



     “Curative Allocation” means any allocation of an item of income, gain, deduction, loss or
credit pursuant to the provisions of Section 6.1(d)(xi).



     “Current Market Price” has the meaning assigned to such term in Section 15.1(a).



     “Delaware Act” means the Delaware Revised Uniform Limited Partnership Act, 6 Del C.
Section 17-101, et seq., as amended, supplemented or restated from time to time, and any successor
to such statute.



8









 





     “Departing General Partner” means a former General Partner from and after the effective date
of any withdrawal or removal of such former General Partner pursuant to Section 11.1 or
Section 11.2.



     “Depositary” means, with respect to any Units issued in global form, The Depository Trust
Company and its successors and permitted assigns.



     “Economic Risk of Loss” has the meaning set forth in Treasury Regulation Section 1.752-2(a).



     “Eligible Citizen” means a Person qualified to own interests in real property in jurisdictions
in which any Group Member does business or proposes to do business from time to time, and whose
status as a Limited Partner the General Partner determines does not or would not subject such Group
Member to a significant risk of cancellation or forfeiture of any of its properties or any interest
therein.



     “Eligible Holder” means a Person either (a) subject to United States federal income taxation
on the income generated by the Partnership or (b) in the case of entities that are pass through
entities for United States federal income tax purposes, all of whose beneficial owners are subject
to United States federal income taxation on the income generated by the Partnership.



     “Estimated Incremental Quarterly Tax Amount” has the meaning assigned to such term in
Section 6.9.



     “Event of Withdrawal” has the meaning assigned to such term in Section 11.1(a).



     “Expansion Capital Expenditures” means cash expenditures for Acquisitions or Capital
Improvements, and shall not include Maintenance Capital Expenditures or Investment Capital
Expenditures. Expansion Capital Expenditures shall include interest (and related fees) on debt
incurred and distributions on equity issued, in each case, to finance the construction or
development of a Capital Improvement and paid during the period beginning on the date that the
Partnership enters into a binding commitment to commence construction or development of a Capital
Improvement and ending on the earlier to occur of the date that such Capital Improvement Commences
Commercial Service or the date that such Capital Improvement is abandoned or disposed of. Debt
incurred or equity issued to fund such construction or development period interest payments
(including periodic net payments under related interest rate swap agreements) or such construction
or development period distributions on equity paid during such period, shall also be deemed to be
debt or equity, as the case may be, issued to finance the construction or development of a Capital
Improvement.



     “FERC ” means the Federal Energy Regulatory Commission.



     “FERC Notice” means the giving of notice by the Partnership to the Limited Partners in the
manner specified in Section 16.1 that the Partnership is implementing procedures pursuant
to this Agreement to require a Limited Partner or a transferee of a Limited Partner Interest to
certify that such Person is a Eligible Holder.



9









 





     “Final Subordinated Units” has the meaning assigned to such term in
Section 6.1(d)(x)(A).



     “First Liquidation Target Amount” has the meaning assigned to such term in
Section 6.1(c)(i)(E).



     “First Target Distribution” means $0.4675 per Unit per Quarter, subject to adjustment in
accordance with Section 5.12, Section 6.6 and Section 6.9.



     “Fully Diluted Basis” means, when calculating the number of Outstanding Units for any period,
a basis that includes, in addition to the Outstanding Units, all Partnership Securities and
options, rights, warrants and appreciation rights relating to an equity interest in the Partnership
(a) that are convertible into or exercisable or exchangeable for Units that are senior to or pari
passu with the Subordinated Units, (b) whose conversion, exercise or exchange price is less than
the Current Market Price on the date of such calculation, (c) that may be converted into or
exercised or exchanged for such Units prior to or during the Quarter immediately following the end
of the period for which the calculation is being made without the satisfaction of any contingency
beyond the control of the holder other than the payment of consideration and the compliance with
administrative mechanics applicable to such conversion, exercise or exchange and (d) that were not
converted into or exercised or exchanged for such Units during the period for which the calculation
is being made; provided, however, that for purposes of determining the number of Outstanding Units
on a Fully Diluted Basis when calculating whether the Subordination Period has ended or
Subordinated Units are entitled to convert into Common Units pursuant to Section 5.8, such
Partnership Securities, options, rights, warrants and appreciation rights shall be deemed to have
been Outstanding Units only for the four Quarters that comprise the last four Quarters of the
measurement period; provided, further, that if consideration will be paid to any Group Member in
connection with such conversion, exercise or exchange, the number of Units to be included in such
calculation shall be that number equal to the difference between (i) the number of Units issuable
upon such conversion, exercise or exchange and (ii) the number of Units that such consideration
would purchase at the Current Market Price.



     “General Partner” means Quest Midstream GP, LLC, a Delaware limited liability company, and its
successors and permitted assigns that are admitted to the Partnership as general partner of the
Partnership, in its capacity as general partner of the Partnership (except as the context otherwise
requires).



     “General Partner Interest” means the ownership interest of the General Partner in the
Partnership (in its capacity as a general partner without reference to any Limited Partner Interest
held by it), which is evidenced by General Partner Units, and includes any and all benefits to
which the General Partner is entitled as provided in this Agreement, together with all obligations
of the General Partner to comply with the terms and provisions of this Agreement.



     “General Partner Unit” means a fractional part of the General Partner Interest having the
rights and obligations specified in this Agreement with respect to the General Partner Interest. A
General Partner Unit is not a Unit.



10









 





     “Group” means a Person that with or through any of its Affiliates or Associates has any
contract, arrangement, understanding or relationship for the purpose of acquiring, holding, voting
(except voting pursuant to a revocable proxy or consent given to such Person in response to a proxy
or consent solicitation made to 10 or more Persons), exercising investment power or disposing of
any Partnership Interests with any other Person that beneficially owns, or whose Affiliates or
Associates beneficially own, directly or indirectly, Partnership Interests.



     “Group Member” means a member of the Partnership Group.



     “Group Member Agreement” means the partnership agreement of any Group Member, other than the
Partnership, that is a limited or general partnership, the limited liability company agreement of
any Group Member that is a limited liability company, the certificate of incorporation and bylaws
or similar organizational documents of any Group Member that is a corporation, the joint venture
agreement or similar governing document of any Group Member that is a joint venture and the
governing or organizational or similar documents of any other Group Member that is a Person other
than a limited or general partnership, limited liability company, corporation or joint venture, as
such may be amended, supplemented or restated from time to time.



     “Holder” as used in Section 7.12, has the meaning assigned to such term in
Section 7.12(a).



     “IDR Reset Election” has the meaning assigned to such term in Section 5.12(a).



     “Incentive Distribution Right” means a non-voting Limited Partner Interest issued to the
General Partner in connection with the transfer of all of its interests in Bluestem to the
Partnership pursuant to the Contribution Agreement, which Limited Partner Interest will confer upon
the holder thereof only the rights and obligations specifically provided in this Agreement with
respect to Incentive Distribution Rights (and no other rights otherwise available to or other
obligations of a holder of a Partnership Interest). Notwithstanding anything in this Agreement to
the contrary, the holder of an Incentive Distribution Right shall not be entitled to vote such
Incentive Distribution Right on any Partnership matter except as may otherwise be required by law.



     “Incentive Distributions” means any amount of cash distributed to the holders of the Incentive
Distribution Rights pursuant to Section 6.4(a)(v)(B), Section 6.4(a)(vi)(B),
Section 6.4(a)(vii)(B), Section 6.4(b)(iii)(B), Section 6.4(b)(iv)(B),
Section 6.4(b)(v)(B) and Section 6.4(c).



     “Incremental Income Tax” has the meaning assigned to such term in Section 6.9.



     “Indemnified Persons” has the meaning assigned to such term in Section 7.12(d).



     “Indemnitee” means (a) the General Partner, (b) any Departing General Partner, (c) any Person
who is or was an Affiliate of the General Partner or any Departing General Partner, (d) any Person
who is or was a member, partner, director, officer, fiduciary or trustee of any Group Member, the
General Partner or any Departing General Partner or any Affiliate of any Group Member, the General
Partner or any Departing General Partner, (e) any Person who is or



11









 




was serving at the request of the General Partner or any Departing General Partner or any
Affiliate of the General Partner or any Departing General Partner as an officer, director, member,
partner, fiduciary or trustee of another Person; provided that a Person shall not be an Indemnitee
by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, and
(f) any Person the General Partner designates as an “Indemnitee” for purposes of this Agreement.




     “Ineligible Assignee” means a Person whom the General Partner has determined is not an
Eligible Holder.



     “Initial Common Units” means the Common Units sold pursuant to the Purchase Agreement.



     “Initial Limited Partner” means QRC and each of the Initial Private Purchasers, in each case
upon being admitted to the Partnership in accordance with Section 10.1 (with respect to the
Common Units, Subordinated Units and Incentive Distribution Rights, if any, received by them
pursuant to Section 5.2).



     “Initial Private Purchaser” means each Person named as a purchaser in Schedule I to the
Purchase Agreement who purchased Common Units pursuant thereto.



     “Initial Public Offering” means the initial public offering of Common Units by the Partnership
that results in the Common Units being listed for trading on the New York Stock Exchange or the
Nasdaq Stock Market.



     “Initial Unit Price” means (a) with respect to the Initial Common Units, $20.00, less any
indemnification proceeds received by the Initial Private Purchasers pursuant to Article VI of the
Purchase Agreement, (b) with respect to the Second Round Common Units, $20.00, less any
indemnification proceeds received by the Second Round Private Purchasers pursuant to Article VI of
the Second Round Purchase Agreement, or (c) with respect to any other class or series of Units, the
price per Unit at which such class or series of Units is initially sold by the Partnership, as
determined by the General Partner, in each case adjusted as the General Partner determines to be
appropriate to give effect to any distribution, subdivision or combination of Units; provided,
however, if the Initial Public Offering has occurred, the Initial Unit Price with respect to all
Common Units shall be the initial public offering price per Common Unit at which the Underwriters
agreed to offer such Common Units for sale to the public as set forth on the cover page of the
final prospectus filed pursuant to Rule 424(b) of the rules and regulations of the Commission with
respect to such Initial Public Offering.



     “Interim Capital Transactions” means the following transactions if they occur prior to the
Liquidation Date: (a) borrowings, refinancings or refundings of indebtedness (other than Working
Capital Borrowings and other than for items purchased on open account in the ordinary course of
business) by any Group Member and sales of debt securities of any Group Member; (b) sales of equity
interests of any Group Member; (c) sales or other voluntary or involuntary dispositions of any
assets of any Group Member other than (i) sales or other dispositions of production, inventory,
accounts receivable and other assets in the ordinary course of business, and (ii) sales or other
dispositions of assets as part of normal retirements or replacements; (d) the termination of
Commodity Hedge Contracts or interest rate swap agreements prior to the



12









 




termination date otherwise specified therein; (e) capital contributions received; or
(f) corporate reorganizations or restructurings.




     “Investment Capital Expenditures” means capital expenditures other than Maintenance Capital
Expenditures and Expansion Capital Expenditures.



     “Investor Representatives” means the members of the Board of Directors of GP designated by
Swank and ACM or their successors pursuant to the terms of the Investors’ Rights Agreement.



     “Investors’ Rights Agreement” means the Amended and Restated Investors’ Rights Agreement,
dated as of November 1, 2007, by and among the Partnership, the General Partner, QRC, the Initial
Private Purchasers and the Second Round Private Purchasers.



     “Issue Price” means the price at which a Unit is purchased from the Partnership, net of any
sales commission or underwriting discount charged to the Partnership.



     “Limited Partner” means, unless the context otherwise requires, each Initial Limited Partner,
each additional Person that becomes a Limited Partner pursuant to the terms of this Agreement and
any Departing General Partner upon the change of its status from General Partner to Limited Partner
pursuant to Section 11.3, in each case, in such Person’s capacity as limited partner of the
Partnership; provided, however, that when the term “Limited Partner” is used herein in the context
of any vote or other approval, including Article XIII and Article XIV, such term
shall not, solely for such purpose, include any holder of an Incentive Distribution Right (solely
with respect to its Incentive Distribution Rights and not with respect to any other Limited Partner
Interest held by such Person) except as may otherwise be required by law.



     “Limited Partner Interest” means the ownership interest of a Limited Partner in the
Partnership, which may be evidenced by Common Units, Class C Units, Subordinated Units, Incentive
Distribution Rights or other Partnership Securities or a combination thereof or interest therein,
and includes any and all benefits to which such Limited Partner is entitled as provided in this
Agreement, together with all obligations of such Limited Partner to comply with the terms and
provisions of this Agreement; provided, however, that when the term “Limited Partner Interest” is
used herein in the context of any vote or other approval, including Article XIII and
Article XIV, such term shall not, solely for such purpose, include any Incentive
Distribution Right except as may otherwise be required by law.



     “Liquidation Date” means (a) in the case of an event giving rise to the dissolution of the
Partnership of the type described in clauses (a) and (b) of the first sentence of
Section 12.2, the date on which the applicable time period during which the holders of
Outstanding Units have the right to elect to continue the business of the Partnership has expired
without such an election being made, and (b) in the case of any other event giving rise to the
dissolution of the Partnership, the date on which such event occurs.



     “Liquidator” means one or more Persons selected by the General Partner to perform the
functions described in Section 12.4 as liquidating trustee of the Partnership within the
meaning of the Delaware Act.



13









 





     “Maintenance Capital Expenditures” means cash expenditures (including expenditures for the
addition or improvement to the capital assets owned by any Group Member or for the acquisition of
existing, or the construction of new, capital assets) if such expenditures are made to maintain,
including over the long term, the operating capacity or revenues of the Partnership Group.
Maintenance Capital Expenditures shall not include (a) Expansion Capital Expenditures or (b)
Investment Capital Expenditures.



     “Merger Agreement” has the meaning assigned to such term in Section 14.1.



     “Midstream Services and Gas Dedication Agreement” means that certain Midstream Services and
Gas Dedication Agreement dated the Closing Date by and between Bluestem and QRC.



     “Minimum Quarterly Distribution” means $0.425 per Unit per Quarter (or with respect to the
Second Round Common Units for the period commencing on November 1, 2007 and ending on December 31,
2007, it means the product of $0.425 multiplied by a fraction of which the numerator is the number
of days in such period and of which the denominator is 92), subject to adjustment in accordance
with Section 5.12, Section 6.6 and Section 6.9.



     “National Securities Exchange” means the New York Stock Exchange and the Nasdaq Stock Market.



     “Net Agreed Value” means, (a) in the case of any Contributed Property, the Agreed Value of
such property reduced by any liabilities either assumed by the Partnership upon such contribution
or to which such property is subject when contributed, (b) in the case of any property distributed
to a Partner by the Partnership, the Partnership’s Carrying Value of such property (as adjusted
pursuant to Section 5.5(d)(ii)) at the time such property is distributed, reduced by any
indebtedness either assumed by such Partner upon such distribution or to which such property is
subject at the time of distribution, in either case, as determined under Section 752 of the Code.



     “Net Income” means, for any taxable year, the excess, if any, of the Partnership’s items of
income and gain (other than those items taken into account in the computation of Net Termination
Gain, Net Termination Loss or Required Sale Gain) for such taxable year over the Partnership’s
items of loss and deduction (other than those items taken into account in the computation of Net
Termination Gain or Net Termination Loss) for such taxable year. The items included in the
calculation of Net Income shall be determined in accordance with Section 5.5(b) and shall
not include any items specially allocated under Section 6.1(d); provided, that the
determination of the items that have been specially allocated under Section 6.1(d) shall be
made as if Section 6.1(d)(xii) were not in this Agreement.



     “Net Loss” means, for any taxable year, the excess, if any, of the Partnership’s items of loss
and deduction (other than those items taken into account in the computation of Net Termination
Gain, Net Termination Loss or Required Sale Gain) for such taxable year over the Partnership’s
items of income and gain (other than those items taken into account in the computation of Net
Termination Gain or Net Termination Loss) for such taxable year. The items included in the
calculation of Net Loss shall be determined in accordance with Section 5.5(b) and



14









 




shall not include any items specially allocated under Section 6.1(d); provided, that
the determination of the items that have been specially allocated under Section 6.1(d)
shall be made as if Section 6.1(d)(xii) were not in this Agreement.




     “Net Positive Adjustments” means, with respect to any Partner, the excess, if any, of the
total positive adjustments over the total negative adjustments made to the Capital Account of such
Partner pursuant to Book-Up Events and Book-Down Events.



     “Net Termination Gain” means, for any taxable year, the sum, if positive, of all items of
income, gain, loss or deduction recognized by the Partnership after the Liquidation Date (other
than items taken into account in the computation of Required Sale Gain). The items included in the
determination of Net Termination Gain shall be determined in accordance with Section 5.5(b)
and shall not include any items of income, gain or loss specially allocated under Section
6.1(d).



     “Net Termination Loss” means, for any taxable year, the sum, if negative, of all items of
income, gain, loss or deduction recognized by the Partnership after the Liquidation Date (other
than items taken into account in the computation of Required Sale Gain). The items included in the
determination of Net Termination Loss shall be determined in accordance with Section 5.5(b)
and shall not include any items of income, gain or loss specially allocated under
Section 6.1(d).



     “Non-citizen Assignee” means a Person whom the General Partner has determined does not
constitute an Eligible Citizen and as to whose Partnership Interest the General Partner has become
the Limited Partner, pursuant to Section 4.9.



     “Nonrecourse Built-in Gain” means with respect to any Contributed Properties or Adjusted
Properties that are subject to a mortgage or pledge securing a Nonrecourse Liability, the amount of
any taxable gain that would be allocated to the Partners pursuant to Section 6.2(b)(i)(A),
Section 6.2(b)(ii)(A), and Section 6.2(b)(iii) if such properties were disposed of
in a taxable transaction in full satisfaction of such liabilities and for no other consideration.



     “Nonrecourse Deductions” means any and all items of loss, deduction or expenditure (including
any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the
principles of Treasury Regulation Section 1.704-2(b), are attributable to a Nonrecourse Liability.



     “Nonrecourse Liability” has the meaning set forth in Treasury Regulation
Section 1.752-1(a)(2).



     “Notice of Election to Purchase” has the meaning assigned to such term in
Section 15.1(b).



     “Omnibus Agreement” means that certain Omnibus Agreement, dated as of the Closing Date, among
QRC, the General Partner, the Partnership, Bluestem, and certain other parties thereto, as such may
be amended, supplemented or restated from time to time.



     “Operating Expenditures” means all Partnership Group cash expenditures (or the Partnership’s
proportionate share of expenditures in the case of Subsidiaries that are not wholly



15









 




owned), including taxes, reimbursements of the General Partner in accordance with this
Agreement, interest payments, repayment of Working Capital Borrowings, Maintenance Capital
Expenditures and non-Pro Rata repurchases of Units (other than those made with the proceeds of an
Interim Capital Transaction), payments made in the ordinary course of business under Commodity
Hedge Contracts (excluding payments made in connection with any termination of a Commodity Hedge
Contract prior to its stated expiration or termination date), provided that with respect to amounts
paid in connection with the initial purchase or placing of a Commodity Hedge Contract, such
amount(s) shall be amortized over the expected term of the applicable Commodity Hedge Contract and,
if earlier, upon its termination, subject to the following:





     (c) Payments (including prepayments and prepayment penalties) of principal of and
premium on indebtedness other than Working Capital Borrowings shall not constitute Operating
Expenditures.




     (d) Operating Expenditures shall not include (i) Expansion Capital Expenditures (ii)
Investment Capital Expenditures, (iii) payment of transaction expenses (including taxes)
relating to Interim Capital Transactions or (iv) distributions to Partners.




     (e) Where capital expenditures are made in part for Expansion Capital Expenditures and
in part for other purposes, the General Partner, with Special Approval, shall determine the
allocation between the amounts paid for each.



     “Operating Surplus” means, with respect to any period ending prior to the Liquidation Date, on
a cumulative basis and without duplication,




     (f) the sum of (i) $8 million, (ii) all cash receipts of the Partnership Group (or the
Partnership’s proportionate share of cash receipts in the case of Subsidiaries that are not
wholly owned) for the period beginning on the Closing Date and ending on the last day of
such period, but excluding cash receipts from Interim Capital Transactions (except to the
extent specified in Section 6.4), (iii) all cash receipts of the Partnership Group
(or the Partnership’s proportionate share of cash receipts in the case of Subsidiaries that
are not wholly owned) after the end of such period but on or before the date of
determination of Operating Surplus with respect to such period resulting from Working
Capital Borrowings and (iv) the amount of distributions paid on equity issued in connection
with the construction or development of a Capital Improvement and paid during the period
beginning on the date that the Partnership enters into a binding commitment to commence
construction or development of such Capital Improvement and ending on the earlier to occur
of the date that such Capital Improvement Commences Commercial Service and the date that it
is abandoned or disposed of (equity issued to fund the construction or development period
interest payments on debt incurred (including periodic net payments under related interest
rate swap agreements), or construction or development period distributions on equity issued,
to finance the construction or development of a Capital Improvement shall also be deemed to
be equity issued to finance the construction or development of a Capital Improvement for
purposes of this clause (iv)), less



16









 






     (g) the sum of (i) Operating Expenditures for the period beginning on the Closing Date
and ending on the last day of such period and (ii) the amount of cash reserves established
by the General Partner to provide funds for future Operating Expenditures; provided,
however, that disbursements made (including contributions to a Group Member or disbursements
on behalf of a Group Member) or cash reserves established, increased or reduced after the
end of such period but on or before the date of determination of Available Cash with respect
to such period shall be deemed to have been made, established, increased or reduced, for
purposes of determining Operating Surplus, within such period if the General Partner so
determines.



     Notwithstanding the foregoing, “Operating Surplus” with respect to the Quarter in which the
Liquidation Date occurs and any subsequent Quarter shall equal zero.



     “Opinion of Counsel” means a written opinion of counsel (who may be regular counsel to the
Partnership or the General Partner or any of its Affiliates) acceptable to the General Partner.



     “Option Closing Date” means the date or dates on which any Common Units are sold by the
Partnership to the Underwriters upon exercise of the Over-Allotment Option.



     “Outstanding” means, with respect to Partnership Securities, all Partnership Securities that
are issued by the Partnership and reflected as outstanding on the Partnership’s books and records
as of the date of determination; provided, however, that if at any time any Person or Group (other
than the General Partner, QRC or their Affiliates) beneficially owns 20% or more of the Outstanding
Partnership Securities of any class then Outstanding, all Partnership Securities owned by such
Person or Group shall not be voted on any matter and shall not be considered to be Outstanding when
sending notices of a meeting of Limited Partners to vote on any matter (unless otherwise required
by law), calculating required votes, determining the presence of a quorum or for other similar
purposes under this Agreement, except that Units so owned shall be considered to be Outstanding for
purposes of Section 11.1(b)(iv) (such Units shall not, however, be treated as a separate
class of Partnership Securities for purposes of this Agreement); provided, further, that the
foregoing limitation shall not apply to (i) any Person or Group who acquired 20% or more of the
Outstanding Partnership Securities of any class then Outstanding directly from the General Partner
or its Affiliates, (ii) any Person or Group who acquired 20% or more of the Outstanding Partnership
Securities of any class then Outstanding directly or indirectly from a Person or Group described in
clause (i) provided that the General Partner shall have notified such Person or Group in writing
that such limitation shall not apply, (iii) any Person or Group who acquired 20% or more of any
Partnership Securities issued by the Partnership with the prior approval of the Board of Directors
or (iv) any Person or Group who acquired an aggregate of 20% or more of the Outstanding Partnership
Securities of any class then outstanding by virtue of a purchase made from an Initial Private
Purchaser or its Affiliates.



     “Over-Allotment Option” means an over-allotment option granted to the Underwriters by the
Partnership pursuant to an underwriting agreement.



     “Partner Nonrecourse Debt” has the meaning set forth in Treasury Regulation
Section 1.704-2(b)(4).



17









 





     “Partner Nonrecourse Debt Minimum Gain” has the meaning set forth in Treasury Regulation
Section 1.704-2(i)(2).



     “Partner Nonrecourse Deductions” means any and all items of loss, deduction or expenditure
(including any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with
the principles of Treasury Regulation Section 1.704-2(i), are attributable to a Partner Nonrecourse
Debt.



     “Partners” means the General Partner and the Limited Partners.



     “Partnership” means Quest Midstream Partners, L.P., a Delaware limited partnership.



     “Partnership Group” means the Partnership and its Subsidiaries treated as a single
consolidated entity.



     “Partnership Interest” means an interest in the Partnership, which shall include the General
Partner Interest and Limited Partner Interests.



     “Partnership Minimum Gain” means that amount determined in accordance with the principles of
Treasury Regulation Section 1.704-2(d).



     “Partnership Security” means any class or series of equity interest in the Partnership (but
excluding any options, rights, warrants and appreciation rights relating to an equity interest in
the Partnership), including Common Units, Class C Units, Subordinated Units, General Partner Units
and Incentive Distribution Rights.



     “Per Unit Capital Amount” means, as of any date of determination, the Capital Account, stated
on a per Unit basis, underlying any Unit held by a Person other than the General Partner or any
Affiliate of the General Partner who holds Units.



     “Percentage Interest” means as of any date of determination (a) as to the General Partner with
respect to General Partner Units and as to any Unitholder with respect to Units, the product
obtained by multiplying (i) 100% less the percentage applicable to clause (b) below by (ii) the
quotient obtained by dividing (A) the number of General Partner Units held by the General Partner
or the number of Units held by such Unitholder, as the case may be, by (B) the total number of
Outstanding Units and General Partner Units, and (b) as to the holders of other Partnership
Securities issued by the Partnership in accordance with Section 5.6, the percentage
established as a part of such issuance. The Percentage Interest with respect to an Incentive
Distribution Right shall at all times be zero.



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



     “Private Purchasers” mean the Initial Private Purchasers and the Second Round Private
Purchasers, collectively.



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     “Pro Rata” means (a) when used with respect to Units or any class thereof, apportioned equally
among all designated Units in accordance with their relative Percentage Interests, (b) when used
with respect to Partners or Record Holders, apportioned among all Partners or Record Holders in
accordance with their relative Percentage Interests and (c) when used with respect to holders of
Incentive Distribution Rights, apportioned equally among all holders of Incentive Distribution
Rights in accordance with the relative number or percentage of Incentive Distribution Rights held
by each such holder.



     “Purchase Agreement” means that certain Purchase Agreement dated as of December 22, 2006 among
the Partnership and the Initial Private Purchasers providing for the purchase of Common Units from
the Partnership.



     “Purchase Date” means the date determined by the General Partner as the date for purchase of
all Outstanding Limited Partner Interests of a certain class (other than Limited Partner Interests
owned by the General Partner and its Affiliates) pursuant to Article XV.



     “QRC” means Quest Resource Corporation, a Nevada corporation.



     “Quarter” means, unless the context requires otherwise, a fiscal quarter of the Partnership;
provided, however, that the first fiscal quarter of the Partnership commencing on December 1, 2006
and ending on December 31, 2006, shall not be considered a “Quarter” of the Partnership for
purposes of distribution of Available Cash pursuant to Article VI hereof.



     “Recapture Income” means any gain recognized by the Partnership (computed without regard to
any adjustment required by Section 734 or Section 743 of the Code) upon the disposition of any
property or asset of the Partnership, which gain is characterized as ordinary income because it
represents the recapture of deductions previously taken with respect to such property or asset.



     “Record Date” means the date established by the General Partner or otherwise in accordance
with this Agreement for determining (a) the identity of the Record Holders entitled to notice of,
or to vote at, any meeting of Limited Partners or entitled to vote by ballot or give approval of
Partnership action in writing without a meeting or entitled to exercise rights in respect of any
lawful action of Limited Partners or (b) the identity of Record Holders entitled to receive any
report or distribution or to participate in any offer.



     “Record Holder” means the Person in whose name a Common Unit is registered on the books of the
Transfer Agent as of the opening of business on a particular Business Day, or with respect to other
Partnership Interests, the Person in whose name any such other Partnership Interest is registered
on the books that the General Partner has caused to be kept as of the opening of business on such
Business Day.



     “Redeemable Interests” means any Partnership Interests for which a redemption notice has been
given, and has not been withdrawn, pursuant to Section 4.10 or Section 4.12.



     “Registration Rights Agreement” means that certain Registration Rights Agreement dated as of
December 22, 2006, as amended, among the Partnership and the Private Purchasers.



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     “Remaining Net Positive Adjustments” means as of the end of any taxable period, (i) with
respect to the Unitholders holding Common Units, Class C Units or Subordinated Units, the excess of
(a) the Net Positive Adjustments of the Unitholders holding Common Units, Class C Units or
Subordinated Units as of the end of such period over (b) the sum of those Partners’ Share of
Additional Book Basis Derivative Items for each prior taxable period, (ii) with respect to the
General Partner (as holder of the General Partner Units), the excess of (a) the Net Positive
Adjustments of the General Partner as of the end of such period over (b) the sum of the General
Partner’s Share of Additional Book Basis Derivative Items with respect to the General Partner Units
for each prior taxable period, and (iii) with respect to the holders of Incentive Distribution
Rights, the excess of (a) the Net Positive Adjustments of the holders of Incentive Distribution
Rights as of the end of such period over (b) the sum of the Share of Additional Book Basis
Derivative Items of the holders of the Incentive Distribution Rights for each prior taxable period.



     “Required Allocations” means (a) any limitation imposed on any allocation of Net Losses or Net
Termination Losses under Section 6.1(b) or Section 6.1(c)(ii) and (b) any
allocation of an item of income, gain, loss or deduction pursuant to Section 6.1(d)(i),
Section 6.1(d)(ii), Section 6.1(d)(iv), Section 6.1(d)(v),
Section 6.1(d)(vii) or Section 6.1(d)(ix).



     “Required Sale” means the right of the Private Purchasers to force a sale of the Partnership
or its assets as more specifically described in the Investors’ Rights Agreement.



     “Required Sale Gain” means, for any taxable year, the sum, if positive, of all items of
income, gain, loss or deduction recognized by the Partnership upon a sale of its assets in a
Required Sale.



     “Required Sale Loss” means, for any taxable year, the sum, if negative, of all items of
income, gain, loss or deduction recognized by the Partnership upon a sale of its assets in a
Required Sale.



     “Required Sale Premium” means (i) 100% if the Required Sale is completed within 180 days or
less after the Initial Private Purchasers provided notice of their exercise of their right to a
Required Sale in accordance with the Investors’ Rights Agreement, (ii) 117.5% if the Required Sale
is completed no less than 181 days nor more than 270 days after the Private Purchasers provided
notice of their exercise of their right to a Required Sale in accordance with the Investors’ Rights
Agreement, (iii) 125% if the Required Sale is completed no less than 271 days nor more than 360
days after the Private Purchasers provided notice of their exercise of their right to a Required
Sale in accordance with the Investors’ Rights Agreement, (iv) 132.5% if the Required Sale is
completed no less than  361 days nor more than 450 days after the Private Purchasers provided
notice of their exercise of their right to a Required Sale in accordance with the Investors’ Rights
Agreement  and (v) 140% if the Required Sale is completed more than 450 days after the Private
Purchasers provided notice of their exercise of their right to a Required Sale in accordance with
the Investors’ Rights Agreement.



     “Reset Notice” has the meaning assigned to such term in Section 5.12(b).



     “Residual Gain” or “Residual Loss” means any item of gain or loss, as the case may be, of the
Partnership recognized for federal income tax purposes resulting from a sale, exchange or



20









 




other disposition of a Contributed Property or Adjusted Property, to the extent such item of
gain or loss is not allocated pursuant to Section 6.2(b)(i)(A) or
Section 6.2(b)(ii)(A), respectively, to eliminate Book-Tax Disparities.




     “Retained Converted Subordinated Unit” has the meaning assigned to such term in
Section 5.5(c)(ii).



     “Second Liquidation Target Amount” has the meaning assigned to such term in
Section 6.1(c)(i)(F).



     “Second Round Common Units” means the Common Units sold pursuant to the Second Round Purchase
Agreement.



     “Second Round Private Purchaser” means each Person named as a purchaser in Schedule I to the
Second Round Purchase Agreement who purchased Common Units pursuant thereto.



     “Second Round Purchase Agreement” means that certain Purchase Agreement dated as of October
16, 2007, among the Partnership and the Second Round Private Purchasers providing for the purchase
of Common Units from the Partnership.



     “Second Target Distribution” means $0.5325 per Unit per Quarter, subject to adjustment in
accordance with Section 5.12, Section 6.6 and Section 6.9.



     “Securities Act” means the Securities Act of 1933, as amended, supplemented or restated from
time to time and any successor to such statute.



     “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, supplemented
or restated from time to time and any successor to such statute.



     “Share of Additional Book Basis Derivative Items” means in connection with any allocation of
Additional Book Basis Derivative Items for any taxable period, (i) with respect to the Unitholders
holding Common Units, Class C Units or Subordinated Units, the amount that bears the same ratio to
such Additional Book Basis Derivative Items as the Unitholders’ Remaining Net Positive Adjustments
as of the end of such period bears to the Aggregate Remaining Net Positive Adjustments as of that
time, (ii) with respect to the General Partner (as holder of the General Partner Units), the amount
that bears the same ratio to such Additional Book Basis Derivative Items as the General Partner’s
Remaining Net Positive Adjustments as of the end of such period bears to the Aggregate Remaining
Net Positive Adjustment as of that time, and (iii) with respect to the Partners holding Incentive
Distribution Rights, the amount that bears the same ratio to such Additional Book Basis Derivative
Items as the Remaining Net Positive Adjustments of the Partners holding the Incentive Distribution
Rights as of the end of such period bears to the Aggregate Remaining Net Positive Adjustments as of
that time.



     “Special Approval” means approval by a majority of the members of the Conflicts Committee
acting in good faith.



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     “Subordinated Unit” means a Class A Subordinated Unit or a Class B Subordinated Unit. The
term “Subordinated Unit” does not include a Common Unit or Class C Unit. A Subordinated Unit that
is convertible into a Common Unit shall not constitute a Common Unit until such conversion occurs.



     “Subordination Period” means the period commencing on the Closing Date and ending on the first
to occur of the following dates:




     (h) The first day of any Quarter beginning after the seventh anniversary of the Closing
Date or, if the Initial Public Offering has occurred, the first day of any Quarter beginning
after the fifth anniversary of the closing of the Initial Public Offering, in either case in
respect of which (i) (A) distributions of Available Cash from Operating Surplus on each of
the Outstanding Common Units, Subordinated Units and General Partner Units and any other
Outstanding Units that are senior or equal in right of distribution to the Subordinated
Units with respect to each of the three consecutive, non-overlapping four-Quarter periods
immediately preceding such date equaled or exceeded the sum of the Minimum Quarterly
Distribution on all Outstanding Common Units, Subordinated Units and General Partner Units
and any other Outstanding Units that are senior or equal in right of distribution to the
Subordinated Units during such periods and (B) the Adjusted Operating Surplus for each of
the three consecutive, non-overlapping four-Quarter periods immediately preceding such date
equaled or exceeded the sum of the Minimum Quarterly Distribution on all of the Common
Units, Subordinated Units and General Partner Units and any other Units that are senior or
equal in right of distribution to the Subordinated Units that were Outstanding during such
periods on a Fully Diluted Basis and (ii) there are no Cumulative Common Unit Arrearages;
and




     (i) the date on which the General Partner is removed as general partner of the
Partnership upon the requisite vote by holders of Outstanding Units under circumstances
where Cause does not exist and Units held by the General Partner and its Affiliates are not
voted in favor of such removal.



     “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.



     “Surviving Business Entity” has the meaning assigned to such term in Section 14.2(b).



22









 





     “Target Distribution” means, collectively, the First Target Distribution, the Second Target
Distribution and the Third Target Distribution.



     “Taxation Certification” means a properly completed certification in such form as may be
specified by the General Partner by which a Limited Partner certifies that he (and if he is a
nominee holding for the account of another Person, that to the best of his knowledge such other
Person) is an Eligible Holder.



     “Third Liquidation Target Amount” has the meaning assigned to such terms in
Section 6.1(c)(1)(G).



     “Third Target Distribution” means $0.6375 per Unit per Quarter, subject to adjustment in
accordance with Section 5.12, Section 6.6 and Section 6.9.



     “Trading Day” has the meaning assigned to such term in Section 15.1(a).



     “transfer” has the meaning assigned to such term in Section 4.4(a).



     “Transfer Agent” means such bank, trust company or other Person (including the General Partner
or one of its Affiliates) as shall be appointed from time to time by the General Partner to act as
registrar and transfer agent for the Common Units; provided, that if no Transfer Agent is
specifically designated for any other Partnership Securities, the General Partner shall act in such
capacity.



     “Underwriters” means the underwriters in the Initial Public Offering.



     “Unit” means a Partnership Security that is designated as a “Unit” and shall include Common
Units, Class C Units and Subordinated Units, each a separate class, but shall not include (i)
General Partner Units (or the General Partner Interest represented thereby) or (ii) Incentive
Distribution Rights.



     “Unit Majority” means (i) during the Subordination Period, at least a majority of the
Outstanding Common Units (excluding Common Units owned by the General Partner and its Affiliates),
voting as a class, and at least a majority of the Outstanding Subordinated Units, voting as a
class, and (ii) after the end of the Subordination Period, at least a majority of the Outstanding
Common Units and Class C Units, if any, voting as a single class.



     “Unitholders” means the holders of Units.



     “Unpaid MQD” has the meaning assigned to such term in Section 6.4(c)(i)(2).



     “Unrealized Gain” attributable to any item of Partnership property means, as of any date of
determination, the excess, if any, of (a) the fair market value of such property as of such date
(as determined under Section 5.5(d)) over (b) the Carrying Value of such property as of
such date (prior to any adjustment to be made pursuant to Section 5.5(d) as of such date).



     “Unrealized Loss” attributable to any item of Partnership property means, as of any date of
determination, the excess, if any, of (a) the Carrying Value of such property as of such date



23









 




(prior to any adjustment to be made pursuant to Section 5.5(d) as of such date) over
(b) the fair market value of such property as of such date (as determined under
Section 5.5(d)).




     “Unrecovered Initial Unit Price” means at any time, with respect to a Unit, the Initial Unit
Price less the sum of all distributions constituting Capital Surplus theretofore made in respect of
an Initial Common Unit or Second Round Common Unit, as the case may be, and any distributions of
cash (or the Net Agreed Value of any distributions in kind) in connection with the dissolution and
liquidation of the Partnership theretofore made in respect of such Initial Common Unit or Second
Round Common Unit, adjusted as the General Partner determines to be appropriate to give effect to
any distribution, subdivision or combination of such Units. From and after the closing of the
Initial Public Offering, the Unrecovered Initial Unit Price shall be determined by reference to the
Initial Unit Price per Common Unit in such Initial Public Offering.



     “U.S. GAAP” means United States generally accepted accounting principles consistently applied.



     “Withdrawal Opinion of Counsel” has the meaning assigned to such term in
Section 11.1(b).



     “Working Capital Borrowings” means borrowings used solely for working capital purposes or to
pay distributions to Partners made pursuant to a credit facility or other arrangement requiring all
such borrowings thereunder to be reduced to a relatively small amount each year for an economically
meaningful period of time.



     Section 1.2 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; (c) the terms “include”,
“includes”, “including” or words of like import shall be deemed to be followed by the words
“without limitation”; and (d) the terms “hereof”, “herein” or “hereunder” refer to this Agreement
as a whole and not to any particular provision of this Agreement. The table of contents and
headings contained in this Agreement are for reference purposes only, and shall not affect in any
way the meaning or interpretation of this Agreement.



ARTICLE II.




Organization




     Section 2.1 Formation. The General Partner and the Initial Limited Partners hereby amend and
restate the First Amended and Restated Agreement of Limited Partnership of Quest Midstream
Partners, L.P. in its entirety. This amendment and restatement shall become effective on the date
of this Agreement. Except as expressly provided to the contrary in this Agreement, the rights,
duties (including fiduciary duties), liabilities and obligations of the Partners and the
administration, dissolution and termination of the Partnership shall be governed by the Delaware
Act. All Partnership Interests shall constitute personal property of the owner thereof for all
purposes.



24









 





     Section 2.2 Name. The name of the Partnership shall be “Quest Midstream Partners, L.P.” The
Partnership’s business may be conducted under any other name or names as determined by the General
Partner, including the name of the General Partner. The words “Limited Partnership,” “L.P.,”
“Ltd.” or similar words or letters shall be included in the Partnership’s name where necessary for
the purpose of complying with the laws of any jurisdiction that so requires. The General Partner
may change the name of the Partnership at any time and from time to time and shall notify the
Limited Partners of such change in the next regular communication to the Limited Partners.



     Section 2.3 Registered Office; Registered Agent; Principal Office; Other Offices. Unless and
until changed by the General Partner, the registered office of the Partnership in the State of
Delaware shall be located at 1209 Orange Street, Wilmington, Delaware 19801, and the registered
agent for service of process on the Partnership in the State of Delaware at such registered office
shall be The Corporation Trust Company. The principal office of the Partnership shall be located
at 9520 N. May Avenue, Suite 300, Oklahoma City, Oklahoma 73120, or such other place as the
General Partner may from time to time designate by notice to the Limited Partners. The Partnership
may maintain offices at such other place or places within or outside the State of Delaware as the
General Partner shall determine necessary or appropriate. The address of the General Partner shall
be 9520 N. May Avenue, Suite 300, Oklahoma City, Oklahoma 73120, or such other place as the
General Partner may from time to time designate by notice to the Limited Partners.



     Section 2.4 Purpose and Business. The purpose and nature of the business to be conducted by
the Partnership shall be to (a) engage directly in, or enter into or form, hold and dispose of any
corporation, partnership, joint venture, limited liability company or other arrangement to engage
indirectly in, any business activity that is approved by the General Partner and that lawfully may
be conducted by a limited partnership organized pursuant to the Delaware Act and, in connection
therewith, to exercise all of the rights and powers conferred upon the Partnership pursuant to the
agreements relating to such business activity, and (b) do anything necessary or appropriate to the
foregoing, including the making of capital contributions or loans to a Group Member; provided,
however, that the General Partner shall not cause the Partnership to engage, directly or
indirectly, in any business activity that the General Partner determines would cause the
Partnership to be treated as an association taxable as a corporation or otherwise taxable as an
entity for federal income tax purposes. To the fullest extent permitted by law, the General
Partner, and, to the extent the approval of the Investor Representatives is required by any
provision of this Agreement, the Investor Representatives shall have no duty or obligation to
propose or approve, and may decline to propose or approve, the conduct by the Partnership of any
business free of any fiduciary or other duty or obligation whatsoever to the Partnership or any
Limited Partner and, in declining to so propose or approve, shall not be required to act in good
faith or pursuant to any other standard imposed by this Agreement, any Group Member Agreement, any
other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation
or at equity.



     Section 2.5 Powers. The Partnership shall be empowered to do any and all acts and things
necessary or appropriate for the furtherance and accomplishment of the purposes and business
described in Section 2.4 and for the protection and benefit of the Partnership.




25











 





     Section 2.6 Power of Attorney.



     (a) Each Limited Partner hereby constitutes and appoints the General Partner and, if a
Liquidator shall have been selected pursuant to Section 12.3, the Liquidator (and any
successor to the Liquidator by merger, transfer, assignment, election or otherwise) and each of
their authorized officers and attorneys-in-fact, as the case may be, with full power of
substitution, as his true and lawful agent and attorney-in-fact, with full power and authority in
his name, place and stead, to:




     (i) execute, swear to, acknowledge, deliver, file and record in the appropriate public
offices (A) all certificates, documents and other instruments (including this Agreement and
the Certificate of Limited Partnership and all amendments or restatements hereof or thereof)
that the General Partner or the Liquidator determines to be necessary or appropriate to
form, qualify or continue the existence or qualification of the Partnership as a limited
partnership (or a partnership in which the limited partners have limited liability) in the
State of Delaware and in all other jurisdictions in which the Partnership may conduct
business or own property; (B) all certificates, documents and other instruments that the
General Partner or the Liquidator determines to be necessary or appropriate to reflect, in
accordance with its terms, any amendment, change, modification or restatement of this
Agreement; (C) all certificates, documents and other instruments (including conveyances and
a certificate of cancellation) that the General Partner or the Liquidator determines to be
necessary or appropriate to reflect the dissolution and liquidation of the Partnership
pursuant to the terms of this Agreement; (D) all certificates, documents and other
instruments relating to the admission, withdrawal, removal or substitution of any Partner
pursuant to, or other events described in, Article IV, Article X,
Article XI or Article XII; (E) all certificates, documents and other
instruments relating to the determination of the rights, preferences and privileges of any
class or series of Partnership Securities issued pursuant to Section 5.6; and (F)
all certificates, documents and other instruments (including agreements and a certificate of
merger) relating to a merger, consolidation or conversion of the Partnership pursuant to
Article XIV; and




     (ii) execute, swear to, acknowledge, deliver, file and record all ballots, consents,
approvals, waivers, certificates, documents and other instruments that the General Partner
or the Liquidator determines to be necessary or appropriate to make, evidence, give, confirm
or ratify any vote, consent, approval, agreement or other action that is made or given by
the Partners hereunder or is consistent with the terms of this Agreement or effectuate the
terms or intent of this Agreement; provided, that when required by Section 13.3 or
any other provision of this Agreement that establishes a percentage of the Limited Partners
or of the Limited Partners of any class or series required to take any action, the General
Partner and the Liquidator may exercise the power of attorney made in this
Section 2.6(a)(ii) only after the necessary vote, consent or approval of the Limited
Partners or of the Limited Partners of such class or series, as applicable.


Nothing contained in this Section 2.6(a) shall be construed as authorizing the General
Partner to amend this Agreement except in accordance with Article XIII or as may be
otherwise expressly provided for in this Agreement.




26









 








     (b) The foregoing power of attorney is hereby declared to be irrevocable and a power coupled
with an interest, and it shall survive and, to the maximum extent permitted by law, not be affected
by the subsequent death, incompetency, disability, incapacity, dissolution, bankruptcy or
termination of any Limited Partner and the transfer of all or any portion of such Limited Partner’s
Partnership Interest and shall extend to such Limited Partner’s heirs, successors, assigns and
personal representatives. Each such Limited Partner hereby agrees to be bound by any
representation made by the General Partner or the Liquidator acting in good faith pursuant to such
power of attorney; and each such Limited Partner, to the maximum extent permitted by law, hereby
waives any and all defenses that may be available to contest, negate or disaffirm the action of the
General Partner or the Liquidator taken in good faith under such power of attorney. Each Limited
Partner shall execute and deliver to the General Partner or the Liquidator, within 15 days after
receipt of the request therefor, such further designation, powers of attorney and other instruments
as the General Partner or the Liquidator may request in order to effectuate this Agreement and the
purposes of the Partnership.



     Section 2.7 Term. The term of the Partnership commenced upon the filing of the Certificate of
Limited Partnership in accordance with the Delaware Act and shall continue in existence until the
dissolution of the Partnership in accordance with the provisions of Article XII. The
existence of the Partnership as a separate legal entity shall continue until the cancellation of
the Certificate of Limited Partnership as provided in the Delaware Act.



     Section 2.8 Title to Partnership Assets. Title to Partnership assets, whether real, personal
or mixed and whether tangible or intangible, shall be deemed to be owned by the Partnership as an
entity, and no Partner, individually or collectively, shall have any ownership interest in such
Partnership assets or any portion thereof. Title to any or all of the Partnership assets may be
held in the name of the Partnership, the General Partner, one or more of its Affiliates or one or
more nominees, as the General Partner may determine. The General Partner hereby declares and
warrants that any Partnership assets for which record title is held in the name of the General
Partner or one or more of its Affiliates or one or more nominees shall be held by the General
Partner or such Affiliate or nominee for the use and benefit of the Partnership in accordance with
the provisions of this Agreement; provided, however, that the General Partner shall use reasonable
efforts to cause record title to such assets (other than those assets in respect of which the
General Partner determines that the expense and difficulty of conveyancing makes transfer of record
title to the Partnership impracticable) to be vested in the Partnership as soon as reasonably
practicable; provided, further, that, prior to the withdrawal or removal of the General Partner or
as soon thereafter as practicable, the General Partner shall use reasonable efforts to effect the
transfer of record title to the Partnership and, prior to any such transfer, will provide for the
use of such assets in a manner satisfactory to the General Partner. All Partnership assets shall
be recorded as the property of the Partnership in its books and records, irrespective of the name
in which record title to such Partnership assets is held.



ARTICLE III.




Rights of Limited Partners




     Section 3.1 Limitation of Liability. The Limited Partners shall have no liability under this
Agreement except as expressly provided in this Agreement or the Delaware Act.



27









 





     Section 3.2 Management of Business. No Limited Partner, in its capacity as such, shall
participate in the operation, management or control (within the meaning of the Delaware Act) of the
Partnership’s business, transact any business in the Partnership’s name or have the power to sign
documents for or otherwise bind the Partnership. Any action taken by any Affiliate of the General
Partner or any officer, director, employee, manager, member, general partner, agent or trustee of
the General Partner or any of its Affiliates, or any officer, director, employee, manager, member,
general partner, agent or trustee of a Group Member, in its capacity as such, shall not be deemed
to be participation in the control of the business of the Partnership by a limited partner of the
Partnership (within the meaning of Section 17-303(a) of the Delaware Act) and shall not affect,
impair or eliminate the limitations on the liability of the Limited Partners under this Agreement.



     Section 3.3 Outside Activities of the Limited Partners. Subject to the provisions of
Section 7.5, which shall continue to be applicable to the Persons referred to therein, any
Limited Partner shall be entitled to and may have business interests and engage in business
activities in addition to those relating to the Partnership, including business interests and
activities in direct competition with the Partnership Group. Neither the Partnership nor any of
the other Partners shall have any rights by virtue of this Agreement in any business ventures of
any Limited Partner.



     Section 3.4 Rights of Limited Partners.



     (a) In addition to other rights provided by this Agreement or by applicable law, and except as
limited by Section 3.4(b), each Limited Partner shall have the right, for a purpose
reasonably related to such Limited Partner’s interest as a Limited Partner in the Partnership, upon
reasonable written demand stating the purpose of such demand, and at such Limited Partner’s own
expense:




     (i) to obtain true and full information regarding the status of the business and
financial condition of the Partnership;




     (ii) promptly after its becoming available, to obtain a copy of the Partnership’s
federal, state and local income tax returns for each year;




     (iii) to obtain a current list of the name and last known business, residence or
mailing address of each Partner;




     (iv) to obtain a copy of this Agreement and the Certificate of Limited Partnership and
all amendments thereto, together with copies of the executed copies of all powers of
attorney pursuant to which this Agreement, the Certificate of Limited Partnership and all
amendments thereto have been executed;




     (v) to obtain true and full information regarding the amount of cash and a description
and statement of the Net Agreed Value of any other Capital Contribution by each Partner and
that each Partner has agreed to contribute in the future, and the date on which each became
a Partner; and



28









 






     (vi) to obtain such other information regarding the affairs of the Partnership as is
just and reasonable.



     (b) The General Partner may keep confidential from the Limited Partners, for such period of
time as the General Partner deems reasonable, (i) any information that the General Partner
reasonably believes to be in the nature of trade secrets or (ii) other information the disclosure
of which the General Partner in good faith believes (A) is not in the best interests of the
Partnership Group, (B) could damage the Partnership Group or its business or (C) that any Group
Member is required by law or by agreement with any third party to keep confidential (other than
agreements with Affiliates of the Partnership the primary purpose of which is to circumvent the
obligations set forth in this Section 3.4).



ARTICLE IV.




Certificates; Record Holders;

Transfer of Partnership Interests;

Redemption of Partnership Interests




     Section 4.1 Certificates. Upon the Partnership’s issuance of Common Units, Subordinated Units
or Class C Units to any Person, the Partnership shall issue, upon the request of such Person, one
or more Certificates in the name of such Person evidencing the number of such Units being so
issued. In addition, (a) upon the General Partner’s request, the Partnership shall issue to it one
or more Certificates in the name of the General Partner evidencing its General Partner Units and
(b) upon the request of any Person owning Incentive Distribution Rights or any other Partnership
Securities other than Common Units, Subordinated Units or Class C Units, the Partnership shall
issue to such Person one or more certificates evidencing such Incentive Distribution Rights or
other Partnership Securities other than Common Units, Subordinated Units or Class C Units.
Certificates shall be executed on behalf of the Partnership by the Chairman of the Board, President
or any Executive Vice President, Senior Vice President or Vice President and the Secretary or any
Assistant Secretary of the General Partner. No Common Unit Certificate shall be valid for any
purpose until it has been countersigned by the Transfer Agent; provided, however, that if the
General Partner elects to issue Common Units in global form, the Common Unit Certificates shall be
valid upon receipt of a certificate from the Transfer Agent certifying that the Common Units have
been duly registered in accordance with the directions of the Partnership. Subject to the
requirements of Section 6.7(c) and Section 6.7(e), the Partners holding
Certificates evidencing Subordinated Units may exchange such Certificates for Certificates
evidencing Common Units on or after the date on which such Subordinated Units are converted into
Common Units pursuant to the terms of Section 5.8. Subject to the requirements of
Section 6.7(e), the Partners holding Certificates evidencing Class C Units may exchange
such Certificates for Certificates evidencing Common Units on or after the period set forth in
Section 5.12(f) pursuant to the terms of Section 5.12.



     Section 4.2 Mutilated, Destroyed, Lost or Stolen Certificates.



     (a) If any mutilated Certificate is surrendered to the Transfer Agent (for Common Units) or
the General Partner (for Partnership Securities other than Common Units), the appropriate officers
of the General Partner on behalf of the Partnership shall execute, and the



29









 







Transfer Agent (for Common Units) or the General Partner (for Partnership Securities other
than Common Units) shall countersign and deliver in exchange therefor, a new Certificate evidencing
the same number and type of Partnership Securities as the Certificate so surrendered.



     (b) The appropriate officers of the General Partner on behalf of the Partnership shall execute
and deliver, and the Transfer Agent (for Common Units) shall countersign, a new Certificate in
place of any Certificate previously issued if the Record Holder of the Certificate:




     (i) makes proof by affidavit, in form and substance satisfactory to the General
Partner, that a previously issued Certificate has been lost, destroyed or stolen;




     (ii) requests the issuance of a new Certificate before the General Partner has notice
that the Certificate has been acquired by a purchaser for value in good faith and without
notice of an adverse claim;




     (iii) if requested by the General Partner, delivers to the General Partner a bond, in
form and substance satisfactory to the General Partner, with surety or sureties and with
fixed or open penalty as the General Partner may direct to indemnify the Partnership, the
Partners, the General Partner and the Transfer Agent against any claim that may be made on
account of the alleged loss, destruction or theft of the Certificate; and




     (iv) satisfies any other reasonable requirements imposed by the General Partner.



     If a Limited Partner fails to notify the General Partner within a reasonable period of time
after he has notice of the loss, destruction or theft of a Certificate, and a transfer of the
Limited Partner Interests represented by the Certificate is registered before the Partnership, the
General Partner or the Transfer Agent receives such notification, the Limited Partner shall be
precluded from making any claim against the Partnership, the General Partner or the Transfer Agent
for such transfer or for a new Certificate.



     (c) As a condition to the issuance of any new Certificate under this Section 4.2, the
General Partner may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and
expenses of the Transfer Agent) reasonably connected therewith.



     Section 4.3 Record Holders. The Partnership shall be entitled to recognize the Record Holder
as the Partner with respect to any Partnership Interest and, accordingly, shall not be bound to
recognize any equitable or other claim to, or interest in, such Partnership Interest on the part of
any other Person, regardless of whether the Partnership shall have actual or other notice thereof,
except as otherwise provided by law or any applicable rule, regulation, guideline or requirement of
any National Securities Exchange on which such Partnership Interests are listed or admitted to
trading. Without limiting the foregoing, when a Person (such as a broker, dealer, bank, trust
company or clearing corporation or an agent of any of the foregoing) is acting as nominee, agent or
in some other representative capacity for another Person in acquiring and/or holding Partnership
Interests, as between the Partnership on the one hand, and such other Persons on the other, such
representative Person shall be the Record Holder of such Partnership Interest.



30









 





     Section 4.4 Transfer Generally.



     (a) The term “transfer,” when used in this Agreement with respect to a Partnership Interest,
shall be deemed to refer to a transaction (i) by which the General Partner assigns its General
Partner Units to another Person or by which a holder of Incentive Distribution Rights assigns its
Incentive Distribution Rights to another Person, and includes a sale, assignment, gift, pledge,
encumbrance, hypothecation, mortgage, exchange or any other disposition by law or otherwise or (ii)
by which the holder of a Limited Partner Interest (other than an Incentive Distribution Right)
assigns such Limited Partner Interest to another Person who is or becomes a Limited Partner, and
includes a sale, assignment, gift, exchange or any other disposition by law or otherwise, including
any transfer upon foreclosure of any pledge, encumbrance, hypothecation or mortgage.



     (b) No Partnership Interest shall be transferred, in whole or in part, except in accordance
with the terms and conditions set forth in this Article IV. Any transfer or purported
transfer of a Partnership Interest not made in accordance with this Article IV shall be
null and void.



     (c) Nothing contained in this Agreement shall be construed to prevent a disposition by any
stockholder, member, partner or other owner of the General Partner of any or all of the shares of
stock, membership interests, partnership interests or other ownership interests in the General
Partner.



     Section 4.5 Registration and Transfer of Limited Partner Interests.



     (a) The General Partner shall keep or cause to be kept on behalf of the Partnership a register
in which, subject to such reasonable regulations as it may prescribe and subject to the provisions
of Section 4.5(b), the Partnership will provide for the registration and transfer of
Limited Partner Interests. The Transfer Agent is hereby appointed registrar and transfer agent for
the purpose of registering Common Units and transfers of such Common Units as herein provided. The
Partnership shall not recognize transfers of Certificates evidencing Limited Partner Interests
unless such transfers are effected in the manner described in this Section 4.5. Upon
surrender of a Certificate for registration of transfer of any Limited Partner Interests evidenced
by a Certificate, and subject to the provisions of Section 4.5(b), the appropriate officers
of the General Partner on behalf of the Partnership shall execute and deliver, and in the case of
Common Units, the Transfer Agent shall countersign and deliver, in the name of the holder or the
designated transferee or transferees, as required pursuant to the holder’s instructions, one or
more new Certificates evidencing the same aggregate number and type of Limited Partner Interests as
was evidenced by the Certificate so surrendered.



     (b) Except as otherwise provided in Section 4.9 and Section 4.11, the General
Partner shall not recognize any transfer of Limited Partner Interests until (i) the Certificates
evidencing such Limited Partner Interests are surrendered for registration of transfer and (ii)
following a FERC Notice, such Certificates are accompanied by a Taxation Certification, properly
completed and duly executed by the transferee (or the transferee’s attorney-in-fact duly authorized
in writing). No charge shall be imposed by the General Partner for such transfer; provided, that
as a condition to the issuance of any new Certificate representing Limited Partner Interests or
under



31









 







this Section 4.5, the General Partner may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed with respect thereto.



     (c) Subject to (i) the foregoing provisions of this Section 4.5, (ii)
Section 4.3, (iii) Section 4.8, (iv) with respect to any class or series of Limited
Partner Interests, the provisions of any statement of designations or an amendment to this
Agreement establishing such class or series, (v) any contractual provisions binding on any Limited
Partner and (vi) provisions of applicable law including the Securities Act, Limited Partner
Interests (other than the Incentive Distribution Rights) shall be freely transferable.



     (d) The General Partner and its Affiliates and QRC and its Affiliates shall have the right at
any time to transfer their Subordinated Units, Class C Units and Common Units (whether issued upon
conversion of the Subordinated Units or otherwise) to one or more Persons.



     Section 4.6 Transfer of the General Partner’s General Partner Interest.



     (a) Subject to Section 4.6(c), prior to the first day of the first Quarter beginning
after the tenth anniversary of the Closing Date, the General Partner shall not transfer all or any
part of its General Partner Interest (represented by General Partner Units) to a Person unless such
transfer (i) has been approved by the prior written consent or vote of the holders of at least a
majority of the Outstanding Common Units (excluding Common Units held by the General Partner and
its Affiliates) or (ii) is of all, but not less than all, of its General Partner Interest to (A) an
Affiliate of the General Partner (other than an individual) or (B) another Person (other than an
individual) in connection with the merger or consolidation of the General Partner with or into such
other Person or the transfer by the General Partner of all or substantially all of its assets to
such other Person.



     (b) Subject to Section 4.6(c), on or after the first day of the first Quarter
beginning after the tenth anniversary of the Closing Date, the General Partner may transfer all or
any of its General Partner Interest without Unitholder approval.



     (c) Notwithstanding anything herein to the contrary, no transfer by the General Partner of all
or any part of its General Partner Interest to another Person shall be permitted unless (i) the
transferee agrees to assume the rights and duties of the General Partner under this Agreement and
to be bound by the provisions of this Agreement, (ii) the Partnership receives an Opinion of
Counsel that such transfer would not result in the loss of limited liability of any Limited Partner
under the Delaware Act or cause the Partnership to be treated as an association taxable as a
corporation or otherwise to be taxed as an entity for federal income tax purposes (to the extent
not already so treated or taxed) and (iii) such transferee also agrees to purchase all (or the
appropriate portion thereof, if applicable) of the partnership or membership interest of the
General Partner as the general partner or managing member, if any, of each other Group Member. In
the case of a transfer pursuant to and in compliance with this Section 4.6, the transferee
or successor (as the case may be) shall, subject to compliance with the terms of
Section 10.3, be admitted to the Partnership as the General Partner immediately prior to
the transfer of the General Partner Interest, and the business of the Partnership shall continue
without dissolution.



32









 





     Section 4.7 Transfer of Incentive Distribution Rights. Prior to the first day of the first
Quarter beginning after the tenth anniversary of the Closing Date, a holder of Incentive
Distribution Rights may transfer any or all of the Incentive Distribution Rights held by such
holder without any consent of the Unitholders to (a) an Affiliate of such holder (other than an
individual) or (b) another Person (other than an individual) in connection with (i) the merger or
consolidation of such holder of Incentive Distribution Rights with or into such other Person or
(ii) the transfer by such holder of all or substantially all of its assets to such other Person.
Any other transfer of the Incentive Distribution Rights prior to the first day of the first Quarter
beginning after the tenth anniversary of the Closing Date shall require the prior approval of
holders of at least a majority of the Outstanding Common Units (excluding Common Units held by the
General Partner and its Affiliates). On or after the first day of the first Quarter beginning
after the tenth anniversary of the Closing Date, or if the Initial Public Offering has occurred, on
or after the first day of the first Quarter beginning after the tenth anniversary of the Initial
Public Offering, the General Partner or any other holder of Incentive Distribution Rights may
transfer any or all of its Incentive Distribution Rights without Unitholder approval.
Notwithstanding anything herein to the contrary, (i) the transfer of Class C Units issued pursuant
to Section 5.12, or the transfer of Common Units issued upon conversion of the Class C
Units, shall not be treated as a transfer of all or any part of the Incentive Distribution Rights
and (ii) no transfer of Incentive Distribution Rights to another Person shall be permitted unless
the transferee agrees to be bound by the provisions of this Agreement.



     Section 4.8 Restrictions on Transfers.



     (a) Except as provided in Section 4.8(d), but notwithstanding the other provisions of
this Article IV, no transfer of any Partnership Interests shall be made if such transfer
would (i) violate the then applicable federal or state securities laws or rules and regulations of
the Commission, any state securities commission or any other governmental authority with
jurisdiction over such transfer, (ii) terminate the existence or qualification of the Partnership
under the laws of the jurisdiction of its formation, or (iii) cause the Partnership to be treated
as an association taxable as a corporation or otherwise to be taxed as an entity for federal income
tax purposes (to the extent not already so treated or taxed).



     (b) The General Partner may impose restrictions on the transfer of Partnership Interests if it
receives an Opinion of Counsel that such restrictions are necessary to avoid a significant risk of
the Partnership becoming taxable as a corporation or otherwise becoming taxable as an entity for
federal income tax purposes. The General Partner may impose such restrictions by amending this
Agreement; provided, however, that any amendment that would result in the delisting or suspension
of trading of any class of Limited Partner Interests on the principal National Securities Exchange
on which such class of Limited Partner Interests is then listed or admitted to trading must be
approved, prior to such amendment being effected, by the holders of at least a majority of the
Outstanding Limited Partner Interests of such class.



     (c) The transfer of a Subordinated Unit that has converted into a Common Unit shall be subject
to the restrictions imposed by Section 6.7(c).



     (d) The transfer of a Class C Unit that has converted into a Common Unit shall be subject to
the restrictions imposed by Section 6.7(e).



33









 





     (e) Nothing contained in this Article IV, or elsewhere in this Agreement, shall
preclude the settlement of any transactions involving Partnership Interests entered into through
the facilities of any National Securities Exchange on which such Partnership Interests are listed
or admitted to trading.



     (f) Each certificate evidencing Partnership Interests shall bear a conspicuous legend in
substantially the following form:




THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF QUEST MIDSTREAM
PARTNERS, L.P. THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL
OR STATE SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH
JURISDICTION OVER SUCH TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF
QUEST MIDSTREAM PARTNERS, L.P. UNDER THE LAWS OF THE STATE OF DELAWARE, (C) CAUSE
QUEST MIDSTREAM PARTNERS, L.P. TO BE TREATED AS AN ASSOCIATION TAXABLE AS A
CORPORATION OR OTHERWISE TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES
(TO THE EXTENT NOT ALREADY SO TREATED OR TAXED), (D) VIOLATE THE TERMS AND
CONDITIONS OF THE SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
QUEST MIDSTREAM PARTNERS, L.P., DATED NOVEMBER 1, 2007, AS THE SAME MAY BE AMENDED
FROM TIME TO TIME, OR (E) VIOLATE THE TERMS AND CONDITIONS OF THE AMENDED AND
RESTATED INVESTORS’ RIGHTS AGREEMENT, DATED NOVEMBER 1, 2007, AS THE SAME MAY BE
AMENDED FROM TIME TO TIME, BY AND AMONG QUEST MIDSTREAM PARTNERS, L.P. AND ITS
GENERAL AND LIMITED PARTNERS. QUEST MIDSTREAM GP, LLC, THE GENERAL PARTNER OF QUEST
MIDSTREAM PARTNERS, L.P., MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS
SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY
TO AVOID A SIGNIFICANT RISK OF QUEST MIDSTREAM PARTNERS, L.P. BECOMING TAXABLE AS A
CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX
PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY
TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY
NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO
TRADING.



34









 





     Section 4.9 Citizenship Certificates; Non-citizen Assignees.



     (a) If any Group Member is or becomes subject to any federal, state or local law or regulation
that the General Partner determines would create a substantial risk of cancellation or forfeiture
of any property in which the Group Member has an interest based on the nationality, citizenship or
other related status of a Limited Partner, the General Partner may request any Limited Partner to
furnish to the General Partner, within 30 days after receipt of such request, an executed
Citizenship Certification or such other information concerning his nationality, citizenship or
other related status (or, if the Limited Partner is a nominee holding for the account of another
Person, the nationality, citizenship or other related status of such Person) as the General Partner
may request. If a Limited Partner fails to furnish to the General Partner within the
aforementioned 30-day period such Citizenship Certification or other requested information or if
upon receipt of such Citizenship Certification or other requested information the General Partner
determines that a Limited Partner is not an Eligible Citizen, the Limited Partner Interests owned
by such Limited Partner shall be subject to redemption in accordance with the provisions of
Section 4.10. In addition, the General Partner may require that the status of any such
Limited Partner be changed to that of a Non-citizen Assignee and, thereupon, the General Partner
shall be substituted for such Non-citizen Assignee as the Limited Partner in respect of the
Non-citizen Assignee’s Limited Partner Interests.



     (b) The General Partner shall, in exercising voting rights in respect of Limited Partner
Interests held by it on behalf of Non-citizen Assignees, distribute the votes in the same ratios as
the votes of Partners (including the General Partner) in respect of Limited Partner Interests other
than those of Non-citizen Assignees are cast, either for, against or abstaining as to the matter.



     (c) Upon dissolution of the Partnership, a Non-citizen Assignee shall have no right to receive
a distribution in kind pursuant to Section 12.4 but shall be entitled to the cash
equivalent thereof, and the Partnership shall provide cash in exchange for an assignment of the
Non-citizen Assignee’s share of any distribution in kind. Such payment and assignment shall be
treated for Partnership purposes as a purchase by the Partnership from the Non-citizen Assignee of
his Limited Partner Interest (representing his right to receive his share of such distribution in
kind).



     (d) At any time after he can and does certify that he has become an Eligible Citizen, a
Non-citizen Assignee may, upon application to the General Partner, request that with respect to any
Limited Partner Interests of such Non-citizen Assignee not redeemed pursuant to
Section 4.10, such Non-citizen Assignee be admitted as a Limited Partner, and upon approval
of the General Partner, such Non-citizen Assignee shall be admitted as a Limited Partner and shall
no longer constitute a Non-citizen Assignee and the General Partner shall cease to be deemed to be
the Limited Partner in respect of the Non-citizen Assignee’s Limited Partner Interests.



     Section 4.10 Redemption of Partnership Interests of Non-citizen Assignees.



     (a) If at any time a Limited Partner fails to furnish a Citizenship Certification or other
information requested within the 30-day period specified in Section 4.9(a), or if upon
receipt of such Citizenship Certification or other information the General Partner determines, with
the advice of counsel, that a Limited Partner is not an Eligible Citizen, the Partnership may,
unless the Limited Partner establishes to the satisfaction of the General Partner that such Limited



35









 







Partner is an Eligible Citizen or has transferred his Partnership Interests to a Person who is
an Eligible Citizen and who furnishes a Citizenship Certification to the General Partner prior to
the date fixed for redemption as provided below, redeem the Limited Partner Interest of such
Limited Partner as follows:




     (i) The General Partner shall, not later than the 30th day before the date fixed for
redemption, give notice of redemption to the Limited Partner, at his last address designated
on the records of the Partnership or the Transfer Agent, by registered or certified mail,
postage prepaid. The notice shall be deemed to have been given when so mailed. The notice
shall specify the Redeemable Interests, the date fixed for redemption, the place of payment,
that payment of the redemption price will be made upon surrender of the Certificate
evidencing the Redeemable Interests and that on and after the date fixed for redemption no
further allocations or distributions to which the Limited Partner would otherwise be
entitled in respect of the Redeemable Interests will accrue or be made.




     (ii) The aggregate redemption price for Redeemable Interests shall be an amount equal
to the Current Market Price (the date of determination of which shall be the date fixed for
redemption) of Limited Partner Interests of the class to be so redeemed multiplied by the
number of Limited Partner Interests of each such class included among the Redeemable
Interests. The redemption price shall be paid, as determined by the General Partner, in
cash or by delivery of a promissory note of the Partnership in the principal amount of the
redemption price, bearing interest at the rate of 5% annually and payable in three equal
annual installments of principal together with accrued interest, commencing one year after
the redemption date.




     (iii) Upon surrender by or on behalf of the Limited Partner, at the place specified in
the notice of redemption, of the Certificate evidencing the Redeemable Interests, duly
endorsed in blank or accompanied by an assignment duly executed in blank, the Limited
Partner or transferee or his duly authorized representative will be entitled to receive the
payment therefor.




     (iv) After the redemption date, Redeemable Interests shall no longer constitute issued
and Outstanding Limited Partner Interests.



     (b) The provisions of this Section 4.10 shall also be applicable to Limited Partner
Interests held by a Limited Partner as nominee of a Person determined to be other than an Eligible
Citizen.



     (c) Nothing in this Section 4.10 shall prevent the recipient of a notice of redemption
from transferring his Limited Partner Interest before the redemption date if such transfer is
otherwise permitted under this Agreement. Upon receipt of notice of such a transfer, the General
Partner shall withdraw the notice of redemption, provided the transferee of such Limited Partner
Interest certifies to the satisfaction of the General Partner that he is an Eligible Citizen. If
the transferee fails to make such certification, such redemption shall be effected from the
transferee on the original redemption date.



36









 





     Section 4.11 Taxation Certifications; Ineligible Assignees.



     (a) Following a FERC Notice, if a transferee or holder of a Limited Partner Interest fails to
furnish a properly completed Taxation Certification in the manner specified in
Section 4.5(b) or if, upon receipt of such Taxation Certification or otherwise, the General
Partner determines that such transferee is not an Eligible Holder, the Limited Partner Interests
owned by such transferee shall be subject to redemption in accordance with the provisions of
Section 4.12.



     (b) Following a FERC Notice, the General Partner may request any Limited Partner to furnish to
the General Partner, within 30 days after receipt of such request, an executed Taxation
Certification or such other information concerning his federal income tax status with respect to
the income and loss generated by the Partnership (or, if the Limited Partner is a nominee holding
for the account of another Person, the federal income tax status of such Person) as the General
Partner may reasonably request. If a Limited Partner or Assignee fails to furnish to the General
Partner within the aforementioned 30-day period such Taxation Certification or other requested
information or if upon receipt of such Taxation Certification or other requested information the
General Partner determines that a Limited Partner is an Ineligible Assignee, the Limited Partner
Interests owned by such Limited Partner shall be subject to redemption in accordance with the
provisions of Section 4.12. The General Partner shall be substituted for such Ineligible
Assignee as the Limited Partner in respect of the Ineligible Assignee’s Limited Partner Interests;
provided , however , that such Ineligible Assignee shall continue to receive allocations and
distributions until the date fixed for redemption of such Limited Partner Interests (if applicable)
pursuant to Section 4.12(a)(i).



     (c) Following a FERC Notice, the General Partner shall, in exercising voting rights in respect
of Limited Partner Interests held by it on behalf of Ineligible Assignees, distribute the votes in
the same ratios as the votes of Partners (including without limitation the General Partner) in
respect of Limited Partner Interests other than those of Ineligible Assignees are cast, either for,
against or abstaining as to the matter.



     (d) Upon dissolution of the Partnership, an Ineligible Assignee shall have no right to receive
a distribution in kind pursuant to Section 12.4 but shall be entitled to the cash
equivalent thereof, and the Partnership shall provide cash in exchange for an assignment of the
Ineligible Assignee’s share of any distribution in kind. Such payment and assignment shall be
treated for Partnership purposes as a purchase by the Partnership from the Ineligible Assignee of
his Limited Partner Interest (representing his right to receive his share of such distribution in
kind).



     (e) At any time after an Ineligible Assignee can and does certify that it has become an
Eligible Holder, such Ineligible Assignee may, upon application to the General Partner, request
that with respect to any Limited Partner Interests of such Ineligible Assignee not redeemed
pursuant to Section 4.12, such Ineligible Assignee be admitted as a Limited Partner, and
upon approval of the General Partner, such Ineligible Assignee shall be admitted as a Limited
Partner and shall no longer constitute a Ineligible Assignee and the General Partner shall cease to
be deemed to be the Limited Partner in respect of such Ineligible Assignee’s Limited Partner
Interests.



37









 





     Section 4.12 Redemption of Partnership Interests of Ineligible Assignees.



     (a) If at any time following a FERC Notice, a transferee of a Limited Partner Interest fails
to furnish the General Partner a Taxation Certification in the manner specified in Section 4.5(b)
or any Limited Partner fails to furnish the General Partner a Taxation Certification or other
information requested within the 30-day period specified in Section 4.11(b), or if upon receipt of
such Taxation Certification or other information the General Partner determines that a Limited
Partner or transferee is not an Eligible Holder, the Partnership may redeem the Limited Partner
Interest of such Limited Partner or transferee as follows:




     (i) The General Partner shall, not later than the 30th day before the date fixed for
redemption, give notice of redemption to the Limited Partner or transferee, at his last
address designated on the records of the Partnership or the Transfer Agent, by registered or
certified mail, postage prepaid. The notice shall be deemed to have been given when so
mailed. The notice shall specify the Redeemable Interests, the date fixed for redemption,
the place of payment, that payment of the redemption price will be made upon surrender of
the Certificate evidencing the Redeemable Interests or, if uncertificated, upon receipt of
evidence satisfactory to the General Partner of the ownership of the Redeemable Interests,
and that on and after the date fixed for redemption no further allocations or distributions
to which the Limited Partner would otherwise be entitled in respect of the Redeemable
Interests will accrue or be made.




     (ii) The aggregate redemption price for Redeemable Interests shall be an amount equal
to the lesser of (A) the Current Market Price (the date of determination of which shall be
the date fixed for redemption) of Limited Partner Interests of the class to be so redeemed
multiplied by the number of Limited Partner Interests of each such class included among the
Redeemable Interests and (B) the price paid for such Limited Partner Interests by the
Limited Partner or transferee. The redemption price shall be paid as determined by the
General Partner, in cash or by delivery of a promissory note of the Partnership in the
principal amount of the redemption price, bearing interest at the rate of 5% annually and
payable in three equal annual installments of principal together with accrued interest,
commencing one year after the redemption date.




     (iii) Upon surrender by or on behalf of the Limited Partner, at the place specified in
the notice of redemption, of (x) if certificated, the Certificate evidencing the Redeemable
Interests, duly endorsed in blank or accompanied by an assignment duly executed in blank, or
(y) if uncertificated, upon receipt of evidence satisfactory to the General Partner of the
ownership of the Redeemable Interests, the Limited Partner or transferee or his duly
authorized representative shall be entitled to receive the payment therefor.




     (iv) After the redemption date, Redeemable Interests shall no longer constitute issued
and Outstanding Limited Partner Interests.



     (b) The provisions of this Section 4.12 shall also be applicable to Limited Partner
Interests held by a Limited Partner as nominee of a Person determined to be other than an Eligible
Holder.



38









 





     (c) Nothing in this Section 4.12 shall prevent the recipient of a notice of redemption
from transferring his Limited Partner Interest before the redemption date if such transfer is
otherwise permitted under this Agreement. Upon receipt of notice of such a transfer, the General
Partner shall withdraw the notice of redemption, provided the transferee of such Limited Partner
Interest certifies to the satisfaction of the General Partner in a Taxation Certification that he
is an Eligible Holder. If the transferee fails to make such certification, such redemption shall be
effected from the transferee on the original redemption date.



ARTICLE V.




Capital Contributions and

Issuance of Partnership Interests




     Section 5.1 Organizational Contributions. In connection with the formation of the Partnership
under the Delaware Act, the General Partner made an initial Capital Contribution to the Partnership
in the amount of $20.00, for a 2% General Partner Interest in the Partnership and has been admitted
as the General Partner of the Partnership, and QRC made an initial Capital Contribution to the
Partnership in the amount of $980.00 for a 98% Limited Partner Interest in the Partnership and has
been admitted as a Limited Partner of the Partnership. As of the Closing Date, the interest of QRC
was redeemed as provided in the Contribution Agreement; and the initial Capital Contribution of QRC
was refunded.



     Section 5.2 Contributions by QRC and the General Partner.



     (a) On the Closing Date and pursuant to the Contribution Agreement: (i) the General Partner
contributed to the Partnership, as a Capital Contribution, 2.64% of the limited liability company
membership interests in Bluestem, in exchange for (A) 200,000 General Partner Units representing a
continuation of its 2% General Partner Interest, subject to all of the rights, privileges and
duties of the General Partner under this Agreement and (B) the Incentive Distribution Rights, and
(ii) QRC contributed to the Partnership as a Capital Contribution, 97.36% of the limited liability
company membership interests in Bluestem, in exchange for an aggregate of 35,134 Class A
Subordinated Units, 4,900,000 Class B Subordinated Units and the right to receive a cash payment of
$38,807,877 million (which reimbursed QRC for certain capital expenditures made by QRC).



     (b) Upon the issuance of any additional Limited Partner Interests by the Partnership (other
than the Common Units issued pursuant to the Purchase Agreement, the Common Units and Subordinated
Units issued pursuant to Section 5.2(a), any Class C Units issued pursuant to
Section 5.12 and any Common Units issued upon conversion of Subordinated Units or Class C
Units), the General Partner may, in exchange for a proportionate number of General Partner Units,
make additional Capital Contributions in an amount equal to the product obtained by multiplying (i)
the quotient determined by dividing (A) the General Partner’s Percentage Interest immediately prior
to the issuance of such additional Limited Partner Interests by (B) 100 less the General Partner’s
Percentage Interest immediately prior to the issuance of such additional Limited Partner Interests
times (ii) the amount contributed to the Partnership by the Limited Partners in exchange for such
additional Limited Partner Interests. Except as set forth in Article 



39









 




XII, the General Partner shall not be obligated to make any additional Capital
Contributions to the Partnership.




     Section 5.3 Contributions by Initial Limited Partners and Second Round Private Purchasers.



     (a) On the Closing Date and pursuant to the Purchase Agreement, each Initial Private Purchaser
contributed to the Partnership cash in an amount equal to the Issue Price per Initial Common Unit,
multiplied by the number of Common Units specified in the Purchase Agreement to be purchased by
such Initial Private Purchaser at the Closing Date. In exchange for such Capital Contributions by
the Initial Private Purchasers, the Partnership issued the number of Common Units specified in the
Purchase Agreement to be purchased by such Initial Private Purchaser.



     (b) No Limited Partner Interests were issued or issuable as of or at the Closing Date other
than (i) the Common Units issuable pursuant to subparagraph (a) hereof in aggregate number equal to
4,864,866, (ii) the 35,134 Class A Subordinated Units issuable pursuant to Section 5.2(a),
(iii) the 4,900,000 Class B Subordinated Units issuable pursuant to Section 5.2(a), and
(iv) the Incentive Distribution Rights.



     (c) On the closing date of the Second Round Purchase Agreement, pursuant to the Second Round
Purchase Agreement, each Second Round Private Purchaser shall contribute to the Partnership cash in
an amount equal to the Issue Price per Second Round Common Unit, multiplied by the number of Common
Units specified in the Second Round Purchase Agreement to be purchased by such Second Round Private
Purchaser at the Closing Date. In exchange for such Capital Contributions by the Second Round
Private Purchasers, the Partnership shall issue the number of Common Units specified in the Second
Round Purchase Agreement to be purchased by such Second Round Private Purchaser.



     Section 5.4 Interest and Withdrawal. No interest shall be paid by the Partnership on Capital
Contributions. No Partner shall be entitled to the withdrawal or return of its Capital
Contribution, except to the extent, if any, that distributions made pursuant to this Agreement or
upon termination of the Partnership may be considered as such by law and then only to the extent
provided for in this Agreement. Except to the extent expressly provided in this Agreement, no
Partner shall have priority over any other Partner either as to the return of Capital Contributions
or as to profits, losses or distributions. Any such return shall be a compromise to which all
Partners agree within the meaning of Section 17-502(b) of the Delaware Act.



     Section 5.5 Capital Accounts.



     (a) The Partnership shall maintain for each Partner (or a beneficial owner of Partnership
Interests held by a nominee in any case in which the nominee has furnished the identity of such
owner to the Partnership in accordance with Section 6031(c) of the Code or any other method
acceptable to the General Partner) owning a Partnership Interest a separate Capital Account with
respect to such Partnership Interest in accordance with the rules of Treasury Regulation
Section 1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital
Contributions made to the Partnership with respect to such Partnership Interest and



40









 





     (ii) all items of Partnership income and gain (including income and gain exempt from tax)
computed in accordance with Section 5.5(b) and allocated with respect to such Partnership
Interest pursuant to Section 6.1, and decreased by (x) the amount of cash or Net Agreed
Value of all actual and deemed distributions of cash or property made with respect to such
Partnership Interest and (y) all items of Partnership deduction and loss computed in accordance
with Section 5.5(b) and allocated with respect to such Partnership Interest pursuant to
Section 6.1.



     (b) For purposes of computing the amount of any item of income, gain, loss or deduction that
is to be allocated pursuant to Article VI and is to be reflected in the Partners’ Capital
Accounts, the determination, recognition and classification of any such item shall be the same as
its determination, recognition and classification for federal income tax purposes (including any
method of depreciation, cost recovery or amortization used for that purpose), provided, that:




     (i) Solely for purposes of this Section 5.5, the Partnership shall be treated
as owning directly its proportionate share (as determined by the General Partner based upon
the provisions of the applicable Group Member Agreement) of all property owned by (x) any
other Group Member that is classified as a partnership or disregarded entity for federal
income tax purposes and (y) any other partnership, limited liability company, unincorporated
business or other entity classified as a partnership or disregarded entity for federal
income tax purposes of which a Group Member is, directly or indirectly, a partner.




     (ii) All fees and other expenses incurred by the Partnership to promote the sale of (or
to sell) a Partnership Interest that can be neither deducted nor amortized under Section 709
of the Code, if any, shall, for purposes of Capital Account maintenance, be treated as an
item of deduction at the time such fees and other expenses are incurred and shall be
allocated among the Partners pursuant to Section 6.1.




     (iii) Except as otherwise provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(m),
the computation of all items of income, gain, loss and deduction shall be made without
regard to any election under Section 754 of the Code that may be made by the Partnership
and, as to those items described in Section 705(a)(1)(B) or 705(a)(2)(B) of the Code,
without regard to the fact that such items are not includable in gross income or are neither
currently deductible nor capitalized for federal income tax purposes. To the extent an
adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or
743(b) of the Code is required, pursuant to Treasury Regulation
Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the
amount of such adjustment in the Capital Accounts shall be treated as an item of gain or
loss.




     (iv) Any income, gain or loss attributable to the taxable disposition of any
Partnership property shall be determined as if the adjusted basis of such property as of
such date of disposition were equal in amount to the Partnership’s Carrying Value with
respect to such property as of such date.



41









 






     (v) In accordance with the requirements of Section 704(b) of the Code, any deductions
for depreciation, cost recovery or amortization attributable to any Contributed Property
shall be determined as if the adjusted basis of such property on the date it was acquired by
the Partnership were equal to the Agreed Value of such property. Upon an adjustment pursuant
to Section 5.5(d) to the Carrying Value of any Partnership property subject to
depreciation, cost recovery or amortization, any further deductions for such depreciation,
cost recovery or amortization attributable to such property shall be determined (A) as if
the adjusted basis of such property were equal to the Carrying Value of such property
immediately following such adjustment and (B) using a rate of depreciation, cost recovery or
amortization derived from the same method and useful life (or, if applicable, the remaining
useful life) as is applied for federal income tax purposes; provided, however, that, if the
asset has a zero adjusted basis for federal income tax purposes, depreciation, cost recovery
or amortization deductions shall be determined using any method that the General Partner may
adopt.




     (vi) If the Partnership’s adjusted basis in a depreciable or cost recovery property is
reduced for federal income tax purposes pursuant to Section 48(q)(1) or 48(q)(3) of the
Code, the amount of such reduction shall, solely for purposes hereof, be deemed to be an
additional depreciation or cost recovery deduction in the year such property is placed in
service and shall be allocated among the Partners pursuant to Section 6.1. Any
restoration of such basis pursuant to Section 48(q)(2) of the Code shall, to the extent
possible, be allocated in the same manner to the Partners to whom such deemed deduction was
allocated.



     (c) (i) A transferee of a Partnership Interest shall succeed to a pro rata portion of the
Capital Account of the transferor relating to the Partnership Interest so transferred.




     (ii) Subject to Section 6.7(c), immediately prior to the transfer of a
Subordinated Unit or of a Subordinated Unit that has converted into a Common Unit pursuant
to Section 5.8 by a holder thereof (other than a transfer to an Affiliate unless the
General Partner elects to have this Section 5.5(c)(ii) apply), the Capital Account
maintained for such Person with respect to its Subordinated Units or converted Subordinated
Units will (A) first, be allocated to the Subordinated Units or converted Subordinated Units
to be transferred in an amount equal to the product of (x) the number of such Subordinated
Units or converted Subordinated Units to be transferred and (y) the Per Unit Capital Amount
for a Common Unit, and (B) second, any remaining balance in such Capital Account will be
retained by the transferor, regardless of whether it has retained any Subordinated Units or
converted Subordinated Units (“Retained Converted Subordinated Units”). Following any such
allocation, the transferor’s Capital Account, if any, maintained with respect to the
retained Subordinated Units or Retained Converted Subordinated Units, if any, will have a
balance equal to the amount allocated under clause (B) hereinabove, and the transferee’s
Capital Account established with respect to the transferred Subordinated Units or converted
Subordinated Units will have a balance equal to the amount allocated under clause (A)
hereinabove.



     (d) (i) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), on an issuance of
additional Partnership Interests for cash or Contributed Property, the issuance of



42









 







Partnership Interests as consideration for the provision of services or the conversion of the
General Partner’s Combined Interest to Common Units pursuant to Section 11.3(b), the
Capital Account of all Partners and the Carrying Value of each Partnership property immediately
prior to such issuance shall be adjusted upward or downward to reflect any Unrealized Gain or
Unrealized Loss attributable to such Partnership property, as if such Unrealized Gain or Unrealized
Loss had been recognized on an actual sale of each such property immediately prior to such issuance
and had been allocated to the Partners at such time pursuant to Section 6.1 in the same
manner as any item of gain or loss actually recognized during such period would have been
allocated. In determining such Unrealized Gain or Unrealized Loss, the aggregate cash amount and
fair market value of all Partnership assets (including cash or cash equivalents) immediately prior
to the issuance of additional Partnership Interests shall be determined by the General Partner
using such method of valuation as it may adopt; provided, however, that the General Partner, in
arriving at such valuation, must take fully into account the fair market value of the Partnership
Interests of all Partners at such time. The General Partner shall allocate such aggregate value
among the assets of the Partnership (in such manner as it determines) to arrive at a fair market
value for individual properties.




     (ii) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), immediately
prior to any actual or deemed distribution to a Partner of any Partnership property (other
than a distribution of cash that is not in redemption or retirement of a Partnership
Interest), the Capital Accounts of all Partners and the Carrying Value of all Partnership
property shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized
Loss attributable to such Partnership property, as if such Unrealized Gain or Unrealized
Loss had been recognized in a sale of such property immediately prior to such distribution
for an amount equal to its fair market value, and had been allocated to the Partners, at
such time, pursuant to Section 6.1 in the same manner as any item of gain or loss
actually recognized during such period would have been allocated. In determining such
Unrealized Gain or Unrealized Loss the aggregate cash amount and fair market value of all
Partnership assets (including cash or cash equivalents) immediately prior to a distribution
shall (A) in the case of an actual distribution that is not made pursuant to
Section 12.4 or in the case of a deemed distribution, be determined and allocated in
the same manner as that provided in Section 5.5(d)(i) or (B) in the case of a
liquidating distribution pursuant to Section 12.4, be determined and allocated by
the Liquidator using such method of valuation as it may adopt.



     (e) The Partners acknowledge and agree that the distribution to Quest Cherokee, LLC pursuant
to Section 3.4 of the Contribution Agreement shall not be deemed to be a distribution to QRC or any
other Partner for purposes of this Agreement and shall not have any impact on any Partners’ Capital
Account.



     Section 5.6 Issuances of Additional Partnership Securities.



     (a) Subject to the provisions of Section 5.6(e), the Partnership may issue such
additional Partnership Securities and options, rights, warrants and appreciation rights relating to
the Partnership Securities for any Partnership purpose at any time and from time to time to such
Persons for such consideration and on such terms and conditions as the General Partner shall
determine, all without the approval of any Limited Partners.



43









 





     (b) Each additional Partnership Security authorized to be issued by the Partnership pursuant
to Section 5.6(a) may be issued in one or more classes, or one or more series of any such
classes, with such designations, preferences, rights, powers and duties (which may be senior to
existing classes and series of Partnership Securities), as shall be fixed by the General Partner,
including (i) the right to share in Partnership profits and losses or items thereof; (ii) the right
to share in Partnership distributions; (iii) the rights upon dissolution and liquidation of the
Partnership; (iv) whether, and the terms and conditions upon which, the Partnership may or shall be
required to redeem the Partnership Security; (v) whether such Partnership Security is issued with
the privilege of conversion or exchange and, if so, the terms and conditions of such conversion or
exchange; (vi) the terms and conditions upon which each Partnership Security will be issued,
evidenced by certificates and assigned or transferred; (vii) the method for determining the
Percentage Interest as to such Partnership Security; and (viii) the right, if any, of each such
Partnership Security to vote on Partnership matters, including matters relating to the relative
rights, preferences and privileges of such Partnership Security.



     (c) The General Partner shall take all actions that it determines to be necessary or
appropriate in connection with (i) each issuance of Partnership Securities and options, rights,
warrants and appreciation rights relating to Partnership Securities pursuant to this
Section 5.6, (ii) the conversion of the General Partner Interest (represented by General
Partner Units) or any Incentive Distribution Rights into Units pursuant to the terms of this
Agreement, (iii) the issuance of Class C Units pursuant to Section 5.12 and issuance of
Common Units upon the conversion of Class C Units pursuant to Section 5.12(f), (iv) the
issuance of Common Units upon the conversion of Subordinated Units pursuant to Section 5.8,
(v) reflecting admission of such additional Limited Partners in the books and records of the
Partnership as the Record Holder of such Limited Partner Interests and (vi) all additional
issuances of Partnership Securities. The General Partner shall determine the relative rights,
powers and duties of the holders of the Units or other Partnership Securities being so issued. The
General Partner shall do all things necessary to comply with the Delaware Act and is authorized and
directed to do all things that it determines to be necessary or appropriate in connection with any
future issuance of Partnership Securities or in connection with the conversion of the General
Partner Interest or any Incentive Distribution Rights into Units pursuant to the terms of this
Agreement, including compliance with any statute, rule, regulation or guideline of any federal,
state or other governmental agency or any National Securities Exchange on which the Units or other
Partnership Securities are listed or admitted to trading.



     (d) No fractional Units shall be issued by the Partnership.



     (e) Notwithstanding the terms of Section 5.6(a), (b), (c) and (d), the
issuance by the Partnership of any Partnership Securities pursuant to this Section 5.6 shall be
subject to the following provisions, restrictions and limitations:




     (i) before the closing of the Initial Public Offering, the Partnership shall not issue
additional Partnership Securities having rights to distribution or in liquidation ranking
prior or senior to the Common Units, unless the issuance has been approved by a majority of
the Outstanding Common Units; and



44









 






     (ii) at any time, the Partnership shall not issue additional Partnership Securities in
violation of Section 4 of the Investors’ Rights Agreement.



     Section 5.7 Conversion of Class A Subordinated Units.



     (a) All of the Outstanding Class A Subordinated Units will convert automatically into Common
Units on a one-for-one basis on the first trading day following the Initial Public Offering.



     (b) A Class A Subordinated Unit that has converted into a Common Unit shall be subject to the
provisions of Section 6.7(b) and Section 6.7(c).



     (c) Notwithstanding any other provision of this Agreement, all the then Outstanding Class A
Subordinated Units will automatically convert into Common Units on a one-for-one basis as set forth
in, and pursuant to the terms of, Section 11.4.



     Section 5.8 Conversion of Class B Subordinated Units.



     (a) A total of 25% of the Outstanding Class B Subordinated Units will convert automatically
into Common Units on a one-for-one basis on the second Business Day following the distribution of
Available Cash to Partners pursuant to Section 6.3(a) in respect of any Quarter ending on
or after the last day of the Quarter containing the third anniversary of the Initial Public
Offering, in respect of which:




     (i) distributions of Available Cash from Operating Surplus under Section 6.4(a)
on each of the Outstanding Common Units, Subordinated Units and General Partner Units and
any other Outstanding Units that are senior or equal in right of distribution to the
Subordinated Units with respect to each of the three consecutive, non-overlapping
four-Quarter periods immediately preceding such date equaled or exceeded the sum of the
Minimum Quarterly Distribution on all of the Outstanding Common Units, Subordinated Units
and General Partner Units, and any other Outstanding Units that are senior or equal in right
of distribution to the Subordinated Units during such periods;




     (ii) the Adjusted Operating Surplus for each of the three consecutive, non-overlapping
four-Quarter periods immediately preceding such date equaled or exceeded the sum of the
Minimum Quarterly Distribution on all of the Common Units, Subordinated Units and General
Partner Units any other Units that are senior or equal in right of distribution to the
Subordinated Units that were Outstanding during such periods on a Fully Diluted Basis; and




     (iii) there are no Cumulative Common Unit Arrearages.



     (b) An additional 25% of the Outstanding Class B Subordinated Units (without giving effect to
the reduction in the number of Outstanding Class B Subordinated Units as a result of the conversion
of Class B Subordinated Units pursuant to Section 5.8(a)) will convert into Common Units on a
one-for-one basis on the second Business Day following the distribution of Available Cash to
Partners pursuant to Section 6.3(a) in respect of any Quarter



45









 







ending on or after the later of last day of the Quarter containing the fourth anniversary of
the Initial Public Offering, in respect of which:




     (i) distributions of Available Cash from Operating Surplus under Section 6.4(a)
on each of the Outstanding Common Units, Subordinated Units and General Partner Units, and
any other Outstanding Units that are senior or equal in right of distribution to the
Subordinated Units with respect to each of the three consecutive, non-overlapping
four-Quarter periods immediately preceding such date equaled or exceeded the sum of the
Minimum Quarterly Distribution on all of the Outstanding Common Units, Subordinated Units
and General Partner Units, and any other Outstanding Units that are senior or equal in right
of distribution to the Subordinated Units during such periods;




     (ii) the Adjusted Operating Surplus for each of the three consecutive, non-overlapping
four-Quarter periods immediately preceding such date equaled or exceeded the sum of the
Minimum Quarterly Distribution on all of the Common Units, Subordinated Units and General
Partner Units any other Units that are senior or equal in right of distribution to the
Subordinated Units that were Outstanding during such periods on a Fully Diluted Basis; and




     (iii) there are no Cumulative Common Unit Arrearages;



     provided, however, that the conversion of the Class B Subordinated Units pursuant to this
Section 5.8(b) may not occur until at least one year following the end of the last four-Quarter
period in respect of which conversion of the Class B Subordinated Units pursuant to Section 5.8(a)
occurred.



     (c) In the event that less than all of the Outstanding Class B Subordinated Units shall
convert into Common Units pursuant to Section 5.8(a) or Section 5.8(b) at a time
when there shall be more than one holder of Class B Subordinated Units, then, unless all of the
holders of Class B Subordinated Units shall agree to a different allocation, the Class B
Subordinated Units that are to be converted into Common Units shall be allocated among the holders
of Class B Subordinated Units pro rata based on the number of Class B Subordinated Units held by
each such holder.



     (d) Any Class B Subordinated Units that are not converted into Common Units pursuant to
Section 5.8(a) or Section 5.8(b) shall convert into Common Units on a one-for-one
basis on the second Business Day following the distribution of Available Cash to Partners pursuant
to Section 6.3(a) in respect of the final Quarter of the Subordination Period.



     (e) Notwithstanding any other provision of this Agreement, all the then Outstanding Class B
Subordinated Units will automatically convert into Common Units on a one-for-one basis as set forth
in, and pursuant to the terms of, Section 11.4.



     (f) A Class B Subordinated Unit that has converted into a Common Unit shall be subject to the
provisions of Section 6.7(b) and Section 6.7(c).



     (g) If the Partnership fails to file the shelf registration statement required by Section 2(a)
of the Registration Rights Agreement within the required time period, or if such



46









 







shelf registration statement is not declared effective within the required time period, the
financial tests required for the conversion of Class B Subordinated Units pursuant to
Section 5.8(a), Section 5.8(b) and Section 5.8(c) shall not commence until
the Partnership has complied with these obligations. In addition, if the Partnership violates its
obligations under Section 2 of the Registration Rights Agreement after such shelf registration
statement is effective, any conversion of Class B Subordinated Units pursuant to
Section 5.8(a), Section 5.8(b) or Section 5.8(c) shall be delayed one
Quarter for aggregate violations that continue up to 90 days and shall be delayed an additional
Quarter each time such continuing violations exceed an additional 90 days.



     Section 5.9 Limited Preemptive Right. Except as provided in this Section 5.9 and
Section 5.2, no Person shall have any preemptive, preferential or other similar right with
respect to the issuance of any Partnership Security, whether unissued, held in the treasury or
hereafter created. The General Partner shall have the right, which it may from time to time assign
in whole or in part to any of its Affiliates, to purchase Partnership Securities from the
Partnership whenever, and on the same terms that, the Partnership issues Partnership Securities to
Persons other than the General Partner and its Affiliates, to the extent necessary to maintain the
Percentage Interests of the General Partner and its Affiliates equal to that which existed
immediately prior to the issuance of such Partnership Securities.



     Section 5.10 Splits and Combinations.



     (a) Subject to Section 5.10(d), Section 6.3, Section 6.6 and
Section 6.9, the Partnership may make a Pro Rata distribution of Partnership Securities to
all Record Holders or may effect a subdivision or combination of Partnership Securities so long as,
after any such event, each Partner shall have the same Percentage Interest in the Partnership as
before such event, and any amounts calculated on a per Unit basis or stated as a number of Units
are proportionately adjusted.



     (b) Whenever such a distribution, subdivision or combination of Partnership Securities is
declared, the General Partner shall select a Record Date as of which the distribution, subdivision
or combination shall be effective and shall send notice thereof at least 20 days prior to such
Record Date to each Record Holder as of a date not less than 10 days prior to the date of such
notice. The General Partner also may cause a firm of independent public accountants selected by it
to calculate the number of Partnership Securities to be held by each Record Holder after giving
effect to such distribution, subdivision or combination. In addition, with respect to any such
distribution, subdivision or combination of any class of Partnership Securities that is convertible
into another class of Partnership Securities or into which any class of Partnership Securities is
convertible or exchangeable, appropriate adjustment shall be made either to assure that the
specified conversion or exchange ratio is maintained or, alternatively, is appropriately adjusted
to give effect to such Pro Rata distribution or subdivision or combination, as the case may be, as
the General Partner determines to be appropriate. The General Partner shall be entitled to rely on
any certificate provided by such firm as conclusive evidence of the accuracy of such calculation.



     (c) Promptly following any such distribution, subdivision or combination, the Partnership may
issue Certificates to the Record Holders of Partnership Securities as of the applicable Record Date
representing the new number of Partnership Securities held by such



47









 







Record Holders, or the General Partner may adopt such other procedures that it determines to
be necessary or appropriate to reflect such changes. If any such combination results in a smaller
total number of Partnership Securities Outstanding, the Partnership shall require, as a condition
to the delivery to a Record Holder of such new Certificate, the surrender of any Certificate held
by such Record Holder immediately prior to such Record Date.



     (d) The Partnership shall not issue fractional Units upon any distribution, subdivision or
combination of Units. If a distribution, subdivision or combination of Units would result in the
issuance of fractional Units but for the provisions of this Section 5.10(d), each
fractional Unit shall be rounded up or down to the nearest whole Unit (and a 0.5 Unit shall be
rounded to the next higher Unit).



     Section 5.11 Fully Paid and Non-Assessable Nature of Limited Partner Interests. All Limited
Partner Interests issued pursuant to, and in accordance with the requirements of, this Article
V shall be fully paid and non-assessable Limited Partner Interests in the Partnership, except
as such non-assessability may be affected by Section 17-607 and Section 17-804 of the Delaware Act.



     Section 5.12 Issuance of Class C Units in Connection with Reset of Incentive Distribution
Rights.



     (a) Subject to the provisions of this Section 5.12, the holder of the Incentive
Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the
holders of a majority in interest of the Incentive Distribution Rights) shall have the right, at
any time when there are no Subordinated Units outstanding and the Partnership has made a
distribution pursuant to Section 6.4(b)(v) for each of the four most recently completed
Quarters and the amount of each such distribution did not exceed Adjusted Operating Surplus for
such Quarter, to make an election (the “IDR Reset Election”) to cause the Minimum Quarterly
Distribution and the Target Distributions to be reset in accordance with the provisions of
Section 5.12(e) and, in connection therewith, the holder or holders of the Incentive
Distribution Rights will become entitled to receive their respective proportionate share of a
number of Class C Units derived by dividing (i) the average amount of cash distributions made by
the Partnership for the two full Quarters immediately preceding the giving of the Reset Notice (as
defined in Section 5.12(b)) in respect of the Incentive Distribution Rights by (ii) the
average of the cash distributions made by the Partnership in respect of each Common Unit for each
of the two full Quarters immediately preceding the giving of the Reset Notice (the number of Class
C Units determined by such quotient is referred to herein as the “Aggregate Quantity of Class C
Units”). The making of the IDR Reset Election in the manner specified in Section 5.12(b)
shall cause the Minimum Quarterly Distribution and the Target Distributions to be reset in
accordance with the provisions of Section 5.12(e) and, in connection therewith, the holder
or holders of the Incentive Distribution Rights will become entitled to receive Class C Units on
the basis specified above, without any further approval required by the General Partner or the
Unitholders, at the time specified in Section 5.12(c) unless the IDR Reset Election is
rescinded pursuant to Section 5.12(d).



     (b) To exercise the right specified in Section 5.12(a), the holder of the Incentive
Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the



48









 







holders of a majority in interest of the Incentive Distribution Rights) shall deliver a
written notice (the “Reset Notice”) to the Partnership. Within 10 Business Days after the receipt
by the Partnership of such Reset Notice, as the case may be, the Partnership shall deliver a
written notice to the holder or holders of the Incentive Distribution Rights of the Partnership’s
determination of the aggregate number of Class C Units which each holder of Incentive Distribution
Rights will be entitled to receive.



     (c) The holder or holders of the Incentive Distribution Rights will be entitled to receive the
Aggregate Quantity of Class C Units on the fifteenth Business Day after receipt by the Partnership
of the Reset Notice, and the Partnership shall issue Certificates for the Class C Units to the
holder or holders of the Incentive Distribution Rights; provided, however, that the issuance of
Class C Units to the holder or holders of the Incentive Distribution Rights shall not occur prior
to the approval of the listing or admission for trading of the Common Units into which the Class C
Units are convertible pursuant to Section 5.12(f) by the principal National Securities
Exchange upon which the Common Units are then listed or admitted for trading if any such approval
is required pursuant to the rules and regulations of such National Securities Exchange.



     (d) In the event that the principal National Securities Exchange upon which the Common Units
are then traded have not approved the listing or admission for trading of the Common Units into
which the Class C Units are convertible pursuant to Section 5.12(f) on or before the 30th
calendar day following the Partnership’s receipt of the Reset Notice and such approval is required
by the rules and regulations of such National Securities Exchange, then the holder of the Incentive
Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the
holders of a majority in interest of the Incentive Distribution Rights) shall have the right to
either rescind the IDR Reset Election or elect to receive other Partnership Securities having such
terms as the General Partner may approve, with the approval of the Conflicts Committee, that will
provide (i) the same economic value, in the aggregate, as the Aggregate Quantity of Class C Units
would have had at the time of the Partnership’s receipt of the Reset Notice, as determined by the
General Partner, and (ii) for the subsequent conversion of such Partnership Securities into Common
Units within not more than 12 months following the Partnership’s receipt of the Reset Notice upon
the satisfaction of one or more conditions that are reasonably acceptable to the holder of the
Incentive Distribution Rights (or, if there is more than one holder of the Incentive Distribution
Rights, the holders of a majority in interest of the Incentive Distribution Rights).



     (e) The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution
and Third Target Distribution shall be adjusted at the time of the issuance of Common Units or
other Partnership Securities pursuant to this Section 5.12 such that (i) the Minimum
Quarterly Distribution shall be reset to equal the average cash distribution amount per Common Unit
for the two Quarters immediately prior to the Partnership’s receipt of the Reset Notice (the “Reset
MQD”), (ii) the First Target Distribution shall be reset to equal 115% of the Reset MQD, (iii) the
Second Target Distribution shall be reset to equal 125% of the Reset MQD; and (iv) the Third Target
Distribution shall be reset to equal 150% of the Reset MQD.



     (f) Any holder of Class C Units shall have the right to elect, by giving written notice to the
General Partner, to convert all or a portion of the Class C Units held by such holder, at any



49









 







time following the first anniversary of the issuance of such Class C Units, into Common Units
on a one-for-one basis, such conversion to be effective on the second Business Day following the
General Partner’s receipt of such written notice.



ARTICLE VI.




Allocations and Distributions




     Section 6.1 Allocations for Capital Account Purposes. For purposes of maintaining the Capital
Accounts and in determining the rights of the Partners among themselves, the Partnership’s items of
income, gain, loss and deduction (computed in accordance with Section 5.5(b)) shall be
allocated among the Partners in each taxable year (or portion thereof) as provided herein.



     (a) Net Income. After giving effect to the special allocations set forth in
Section 6.1(d), Net Income for each taxable year and all items of income, gain, loss and
deduction taken into account in computing Net Income for such taxable year shall be allocated as
follows:




     (i) First, 100% to the General Partner, until the aggregate Net Income allocated to the
General Partner pursuant to this Section 6.1(a)(i) for the current taxable year and
all previous taxable years is equal to the aggregate Net Losses allocated to the General
Partner pursuant to Section 6.1(b)(iii) for all previous taxable years;




     (ii) Second, 100% to the General Partner and the Unitholders, in accordance with their
respective Percentage Interests, until the aggregate Net Income allocated to such Partners
pursuant to this Section 6.1(a)(ii) for the current taxable year and all previous
taxable years is equal to the aggregate Net Losses allocated to such Partners pursuant to
Section 6.1(b)(ii) for all previous taxable years; and




     (iii) Thereafter, the balance, if any, 100% to the General Partner and to the
Unitholders, in accordance with their respective Percentage Interests.



     (b) Net Losses. After giving effect to the special allocations set forth in
Section 6.1(d), Net Losses for each taxable period and all items of income, gain, loss and
deduction taken into account in computing Net Losses for such taxable period shall be allocated as
follows:




     (i) First, 100% to the General Partner and the Unitholders, in accordance with their
respective Percentage Interests, until the aggregate Net Losses allocated to such Partners
pursuant to this Section 6.1(b)(i) for the current taxable year and all previous
taxable years is equal to the aggregate Net Income allocated to such Partners pursuant to
Section 6.1(a)(iii) for all previous taxable years, provided that the Net Losses
shall not be allocated pursuant to this Section 6.1(b)(i) to the extent that such
allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital
Account at the end of such taxable year (or increase any existing deficit balance in its
Adjusted Capital Account);



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     (ii) Second, 100% to the General Partner and the Unitholders, in accordance with their
respective Percentage Interests; provided, that Net Losses shall not be allocated pursuant
to this Section 6.1(b)(ii) to the extent that such allocation would cause any
Unitholder to have a deficit balance in its Adjusted Capital Account at the end of such
taxable year (or increase any existing deficit balance in its Adjusted Capital Account); and




     (iii) Thereafter, the balance, if any, 100% to the General Partner.



     (c) Net Termination Gains and Losses. After giving effect to the special allocations set
forth in Section 6.1(d), all items of income, gain, loss and deduction taken into account
in computing Net Termination Gain or Net Termination Loss for such taxable period shall be
allocated in the same manner as such Net Termination Gain or Net Termination Loss is allocated
hereunder. All allocations under this Section 6.1(c) shall be made after Capital Account
balances have been adjusted by all other allocations provided under this Section 6.1 and
after all distributions of Available Cash provided under Section 6.4 and
Section 6.5 have been made; provided, however, that solely for purposes of this
Section 6.1(c), Capital Accounts shall not be adjusted for distributions made pursuant to
Section 12.4.




     (i) If a Net Termination Gain is recognized (or deemed recognized pursuant to
Section 5.5(d)), such Net Termination Gain shall be allocated among the Partners in
the following manner (and the Capital Accounts of the Partners shall be increased by the
amount so allocated in each of the following subclauses, in the order listed, before an
allocation is made pursuant to the next succeeding subclause):




     (A) First, to each Partner having a deficit balance in its Capital Account, in
the proportion that such deficit balance bears to the total deficit balances in the
Capital Accounts of all Partners, until each such Partner has been allocated Net
Termination Gain equal to any such deficit balance in its Capital Account;




     (B) Second, (x) to the General Partner in accordance with its Percentage
Interest and (y) to all Unitholders holding Common Units or Class C Units, Pro Rata,
a percentage equal to 100% less the percentage applicable to subclause (x) of this
clause (B), until the Capital Account in respect of each Common Unit and each Class
C Unit then Outstanding is equal to the sum of (1) its Unrecovered Initial Unit
Price, (2) the Minimum Quarterly Distribution for the Quarter during which the
Liquidation Date occurs, reduced by any distribution pursuant to Section
6.4(a)(i) or Section 6.4(b)(i) with respect to such Common Unit or Class
C Unit for such Quarter (the amount determined pursuant to this clause (2) is
hereinafter defined as the “Unpaid MQD”) and (3) any then existing Cumulative Common
Unit Arrearage;




     (C) Third, if such Net Termination Gain is recognized (or is deemed to be
recognized) prior to the conversion of the last Outstanding Subordinated Unit, (x)
to the General Partner in accordance with its Percentage Interest and (y) to all
Unitholders holding Subordinated Units, Pro Rata, a percentage equal to 100%



51









 







less the percentage applicable to subclause (x) of this clause (C), until the
Capital Account in respect of each Subordinated Unit then Outstanding equals the sum
of (1) its Unrecovered Initial Unit Price, determined for the taxable year (or
portion thereof) to which this allocation of gain relates, and (2) the Minimum
Quarterly Distribution for the Quarter during which the Liquidation Date occurs,
reduced by any distribution pursuant to Section 6.4(a)(iii) with respect to
such Subordinated Unit for such Quarter;




     (D) Fourth, 100% to the General Partner and all Unitholders in accordance with
their respective Percentage Interests, until the Capital Account in respect of each
Common Unit then Outstanding is equal to the sum of (1) its Unrecovered Initial Unit
Price, (2) the Unpaid MQD, (3) any then existing Cumulative Common Unit Arrearage,
and (4) the excess of (aa) the First Target Distribution less the Minimum Quarterly
Distribution for each Quarter of the Partnership’s existence over (bb) the
cumulative per Unit amount of any distributions of Available Cash that is deemed to
be Operating Surplus made pursuant to Section 6.4(a)(v) and
Section 6.4(b)(ii) (the sum of (1), (2), (3) and (4) is hereinafter defined
as the “First Liquidation Target Amount”);




     (E) Fifth, (x) to the General Partner in accordance with its Percentage
Interest, (y) 13% to the holders of the Incentive Distribution Rights, Pro Rata, and
(z) to all Unitholders, Pro Rata, a percentage equal to 100% less the sum of the
percentages applicable to subclause (x) and (y) of this clause (E), until the
Capital Account in respect of each Common Unit then Outstanding is equal to the sum
of (1) the First Liquidation Target Amount, and (2) the excess of (aa) the Second
Target Distribution less the First Target Distribution for each Quarter of the
Partnership’s existence over (bb) the cumulative per Unit amount of any
distributions of Available Cash that is deemed to be Operating Surplus made pursuant
to Section 6.4(a)(vi) and Section 6.4(b)(iii) (the sum of (1) and
(2) is hereinafter defined as the “Second Liquidation Target Amount”); and




     (F) Sixth, (x) to the General Partner in accordance with its Percentage
Interest, (y) 23% to the holders of the Incentive Distribution Rights, Pro Rata, and
(z) to all Unitholders, Pro Rata, a percentage equal to 100% less the sum of the
percentages applicable to subclause (x) and (y) of this clause (F), until the
Capital Account in respect of each Common Unit then Outstanding is equal to the sum
of (1) the First Liquidation Target Amount, (2) the Second Liquidation Target Amount
and (3) the excess of (aa) the Third Target Distribution less the Second Target
Distribution for each Quarter of the Partnership’s existence over (bb) the
cumulative per Unit amount of any distributions of Available Cash that is deemed to
be Operating Surplus made pursuant to Section 6.4(a)(vii) and
Section 6.4(b)(iv) (the sum of (1) and (2) is hereinafter defined as the
“Third Liquidation Target Amount”); and




     (G) Thereafter, (x) to the General Partner in accordance with its Percentage
Interest, (y) 48% to the holders of the Incentive Distribution Rights,



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Pro Rata, and (z) to all Unitholders, Pro Rata, a percentage equal to 100% less
the sum of the percentages applicable to subclause (x) and (y) of this clause (G),




     (ii) If a Net Termination Loss is recognized (or deemed recognized pursuant to
Section 5.5(d)), such Net Termination Loss shall be allocated among the Partners in
the following manner:




     (A) First, if such Net Termination Loss is recognized (or is deemed to be
recognized) prior to the conversion of the last Outstanding Subordinated Unit, (x)
to the General Partner in accordance with its Percentage Interest and (y) to all
Unitholders holding Subordinated Units, Pro Rata, a percentage equal to 100% less
the percentage applicable to subclause (x) of this clause (A), until the Capital
Account in respect of each Subordinated Unit then Outstanding has been reduced to
zero;




     (B) Second, (x) to the General Partner in accordance with its Percentage
Interest and (y) to all Unitholders holding Common Units or Class C Units, Pro Rata,
a percentage equal to 100% less the percentage applicable to subclause (x) of this
clause (B) until the Capital Account in respect of each Common Unit and each Class C
Unit then Outstanding has been reduced to zero; and




     (C) Thereafter, the balance, if any, 100% to the General Partner.



     (d) Special Allocations. Notwithstanding any other provision of this Section 6.1, the
following special allocations shall be made for such taxable period:




     (i) Partnership Minimum Gain Chargeback. Notwithstanding any other provision of this
Section 6.1, if there is a net decrease in Partnership Minimum Gain during any
Partnership taxable period, each Partner shall be allocated items of Partnership income and
gain for such period (and, if necessary, subsequent periods) in the manner and amounts
provided in Treasury Regulation Sections 1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i),
or any successor provision. For purposes of this Section 6.1(d), each Partner’s
Adjusted Capital Account balance shall be determined, and the allocation of income or gain
required hereunder shall be effected, prior to the application of any other allocations
pursuant to this Section 6.1(d) with respect to such taxable period (other than an
allocation pursuant to Section 6.1(d)(vi) and Section 6.1(d)(vii)). This
Section 6.1(d)(i) is intended to comply with the Partnership Minimum Gain chargeback
requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently
therewith.




     (ii) Chargeback of Partner Nonrecourse Debt Minimum Gain. Notwithstanding the other
provisions of this Section 6.1 (other than Section 6.1(d)(i)), except as
provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Partner
Nonrecourse Debt Minimum Gain during any Partnership taxable period, any Partner with a
share of Partner Nonrecourse Debt Minimum Gain at the beginning of such taxable period shall
be allocated items of Partnership income and gain for such



53









 







period (and, if necessary, subsequent periods) in the manner and amounts provided in
Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any successor
provisions. For purposes of this Section 6.1(d), each Partner’s Adjusted Capital
Account balance shall be determined, and the allocation of income or gain required hereunder
shall be effected, prior to the application of any other allocations pursuant to this
Section 6.1(d), other than Section 6.1(d)(i) and other than an allocation
pursuant to Section 6.1(d)(vi) and Section 6.1(d)(vii), with respect to such
taxable period. This Section 6.1(d)(ii) is intended to comply with the chargeback
of items of income and gain requirement in Treasury Regulation Section 1.704-2(i)(4) and
shall be interpreted consistently therewith.




     (iii) Priority Allocations.




     (A) If the amount of cash or the Net Agreed Value of any property distributed
(except cash or property distributed pursuant to Section 12.4) to any
Unitholder with respect to its Units for a taxable year is greater (on a per Unit
basis) than the amount of cash or the Net Agreed Value of property distributed to
the other Unitholders with respect to their Units (on a per Unit basis), then (1)
there shall be allocated income and gain to each Unitholder receiving such greater
cash or property distribution until the aggregate amount of such items allocated
pursuant to this Section 6.1(d)(iii)(A) for the current taxable year and all
previous taxable years is equal to the product of (aa) the amount by which the
distribution (on a per Unit basis) to such Unitholder exceeds the distribution (on a
per Unit basis) to the Unitholders receiving the smallest distribution and (bb) the
number of Units owned by the Unitholder receiving the greater distribution; and (2)
the General Partner shall be allocated income and gain in an aggregate amount equal
to the product obtained by multiplying (aa) the quotient determined by dividing (x)
the General Partner’s Percentage Interest at the time in which the greater cash or
property distribution occurs by (y) the sum of 100 less the General Partner’s
Percentage Interest at the time in which the greater cash or property distribution
occurs times (bb) the sum of the amounts allocated in clause (1).




     (B) After the application of Section 6.1(d)(iii)(A), all or any portion
of the remaining items of Partnership income or gain for the taxable period, if any,
shall be allocated (1) to the holders of Incentive Distribution Rights, Pro Rata,
until the aggregate amount of such items allocated to the holders of Incentive
Distribution Rights pursuant to this Section 6.1(d)(iii)(B) for the current
taxable year and all previous taxable years is equal to the cumulative amount of all
Incentive Distributions made to the holders of Incentive Distribution Rights from
the Closing Date to a date 45 days after the end of the current taxable year; and
(2) to the General Partner an amount equal to the product of (aa) an amount equal to
the quotient determined by dividing (x) the General Partner’s Percentage Interest by
(y) the sum of 100 less the General Partner’s Percentage Interest times (bb) the sum
of the amounts allocated in clause (1).




     (iv) Qualified Income Offset. In the event any Partner unexpectedly receives any
adjustments, allocations or distributions described in Treasury Regulation Sections



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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), items of
Partnership income and gain shall be specially allocated to such Partner in an amount and
manner sufficient to eliminate, to the extent required by the Treasury Regulations
promulgated under Section 704(b) of the Code, the deficit balance, if any, in its Adjusted
Capital Account created by such adjustments, allocations or distributions as quickly as
possible unless such deficit balance is otherwise eliminated pursuant to
Section 6.1(d)(i) or Section 6.1(d)(ii).




     (v) Gross Income Allocations. In the event any Partner has a deficit balance in its
Capital Account at the end of any Partnership taxable period in excess of the sum of (A) the
amount such Partner is required to restore pursuant to the provisions of this Agreement and
(B) the amount such Partner is deemed obligated to restore pursuant to Treasury Regulation
Sections 1.704-2(g) and 1.704-2(i)(5), such Partner shall be specially allocated items of
Partnership income and gain in the amount of such excess as quickly as possible; provided,
that an allocation pursuant to this Section 6.1(d)(v) shall be made only if and to
the extent that such Partner would have a deficit balance in its Capital Account as adjusted
after all other allocations provided for in this Section 6.1 have been tentatively
made as if this Section 6.1(d)(v) were not in this Agreement.




     (vi) Nonrecourse Deductions. Nonrecourse Deductions for any taxable period shall be
allocated to the Partners in accordance with their respective Percentage Interests. If the
General Partner determines that the Partnership’s Nonrecourse Deductions should be allocated
in a different ratio to satisfy the safe harbor requirements of the Treasury Regulations
promulgated under Section 704(b) of the Code, the General Partner is authorized, upon notice
to the other Partners, to revise the prescribed ratio to the numerically closest ratio that
does satisfy such requirements.




     (vii) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any taxable
period shall be allocated 100% to the Partner that bears the Economic Risk of Loss with
respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are
attributable in accordance with Treasury Regulation Section 1.704-2(i). If more than one
Partner bears the Economic Risk of Loss with respect to a Partner Nonrecourse Debt, such
Partner Nonrecourse Deductions attributable thereto shall be allocated between or among such
Partners in accordance with the ratios in which they share such Economic Risk of Loss.




     (viii) Nonrecourse Liabilities. For purposes of Treasury Regulation
Section 1.752-3(a)(3), the Partners agree that Nonrecourse Liabilities of the Partnership in
excess of the sum of (A) the amount of Partnership Minimum Gain and (B) the total amount of
Nonrecourse Built-in Gain shall be allocated among the Partners in accordance with their
respective Percentage Interests.




     (ix) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax
basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required,
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in
determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be
treated as an item of gain (if the adjustment increases the basis



55









 







of the asset) or loss (if the adjustment decreases such basis), and such item of gain
or loss shall be specially allocated to the Partners in a manner consistent with the manner
in which their Capital Accounts are required to be adjusted pursuant to such Section of the
Treasury Regulations.




     (x) Economic Uniformity.




     (A) At the election of the General Partner with respect to any taxable period
ending upon, or after, the termination of the Subordination Period, all or a portion
of the remaining items of Partnership income or gain for such taxable period, after
taking into account allocations pursuant to Section 6.1(d)(iii), shall be
allocated 100% to each Partner holding Subordinated Units that are Outstanding as of
the termination of the Subordination Period (“Final Subordinated Units”) in the
proportion of the number of Final Subordinated Units held by such Partner to the
total number of Final Subordinated Units then Outstanding, until each such Partner
has been allocated an amount of income or gain that increases the Capital Account
maintained with respect to such Final Subordinated Units to an amount equal to the
product of (A) the number of Final Subordinated Units held by such Partner and (B)
the Per Unit Capital Amount for a Common Unit. The purpose of this allocation is to
establish uniformity between the Capital Accounts underlying Final Subordinated
Units and the Capital Accounts underlying Common Units held by Persons other than
the General Partner and its Affiliates immediately prior to the conversion of such
Final Subordinated Units into Common Units. This allocation method for establishing
such economic uniformity will be available to the General Partner only if the method
for allocating the Capital Account maintained with respect to the Subordinated Units
between the transferred and retained Subordinated Units pursuant to
Section 5.5(c)(ii) does not otherwise provide such economic uniformity to
the Final Subordinated Units.




     (B) At the election of the General Partner with respect to any taxable period
ending upon, or after, the conversion of the Class C Units pursuant to
Section 5.12(f), all or a portion of the remaining items of Partnership
income or gain for such taxable period, after taking into account allocations
pursuant to Section 6.1(d)(iii) and Section 6.1(d)(x)(A), shall be
allocated 100% to the holder or holders of the Common Units resulting from the
conversion pursuant to Section 5.12(f) (“Converted Common Units”) in the
proportion of the number of the Converted Common Units held by such holder or
holders to the total number of Converted Common Units then Outstanding, until each
such holder has been allocated an amount of income or gain that increases the
Capital Account maintained with respect to such Converted Common Units to an amount
equal to the product of (A) the number of Converted Common Units held by such holder
and (B) the Per Unit Capital Amount for a Common Unit. The purpose of this
allocation is to establish uniformity between the Capital Accounts underlying
Converted Common Units and the Capital Accounts underlying Common Units held by
Persons other than the General Partner and its Affiliates immediately prior to the
receipt of Common Units pursuant to Section 5.12(f).



56









 






     (xi) Curative Allocation.




     (A) Notwithstanding any other provision of this Section 6.1, other than
the Required Allocations, the Required Allocations shall be taken into account in
making the Agreed Allocations so that, to the extent possible, the net amount of
items of income, gain, loss and deduction allocated to each Partner pursuant to the
Required Allocations and the Agreed Allocations, together, shall be equal to the net
amount of such items that would have been allocated to each such Partner under the
Agreed Allocations had the Required Allocations and the related Curative Allocation
not otherwise been provided in this Section 6.1. Notwithstanding the
preceding sentence, Required Allocations relating to (1) Nonrecourse Deductions
shall not be taken into account except to the extent that there has been a decrease
in Partnership Minimum Gain and (2) Partner Nonrecourse Deductions shall not be
taken into account except to the extent that there has been a decrease in Partner
Nonrecourse Debt Minimum Gain. Allocations pursuant to this
Section 6.1(d)(xi)(A) shall only be made with respect to Required
Allocations to the extent the General Partner determines that such allocations will
otherwise be inconsistent with the economic agreement among the Partners. Further,
allocations pursuant to this Section 6.1(d)(xi)(A) shall be deferred with
respect to allocations pursuant to clauses (1) and (2) hereof to the extent the
General Partner determines that such allocations are likely to be offset by
subsequent Required Allocations.




     (B) The General Partner shall, with respect to each taxable period, (1) apply
the provisions of Section 6.1(d)(xi)(A) in whatever order is most likely to
minimize the economic distortions that might otherwise result from the Required
Allocations, and (2) divide all allocations pursuant to
Section 6.1(d)(xi)(A) among the Partners in a manner that is likely to
minimize such economic distortions.




     (xii) Corrective Allocations. In the event of any allocation of Additional Book Basis
Derivative Items or any Book-Down Event or any recognition of a Net Termination Loss, the
following rules shall apply:




     (A) In the case of any allocation of Additional Book Basis Derivative Items
(other than an allocation of Unrealized Gain or Unrealized Loss under
Section 5.5(d)), the General Partner shall allocate additional items of
income and gain away from the holders of Incentive Distribution Rights to the
Unitholders and the General Partner, or additional items of deduction and loss away
from the Unitholders and the General Partner to the holders of Incentive
Distribution Rights, to the extent that the Additional Book Basis Derivative Items
allocated to the Unitholders or the General Partner exceed their Share of Additional
Book Basis Derivative Items. For this purpose, the Unitholders and the General
Partner shall be treated as being allocated Additional Book Basis Derivative Items
to the extent that such Additional Book Basis Derivative Items have reduced the
amount of income that would otherwise have been allocated to the Unitholders or the
General Partner under the Partnership Agreement (e.g., Additional Book Basis
Derivative Items taken into account in computing cost of goods sold would reduce



57









 







the amount of book income otherwise available for allocation among the
Partners). Any allocation made pursuant to this Section 6.1(d)(xii)(A) shall
be made after all of the other Agreed Allocations have been made as if this
Section 6.1(d)(xii) were not in this Agreement and, to the extent necessary,
shall require the reallocation of items that have been allocated pursuant to such
other Agreed Allocations.




     (B) In the case of any negative adjustments to the Capital Accounts of the
Partners resulting from a Book-Down Event or from the recognition of a Net
Termination Loss, such negative adjustment (1) shall first be allocated, to the
extent of the Aggregate Remaining Net Positive Adjustments, in such a manner, as
determined by the General Partner, that to the extent possible the aggregate Capital
Accounts of the Partners will equal the amount that would have been the Capital
Account balance of the Partners if no prior Book-Up Events had occurred, and (2) any
negative adjustment in excess of the Aggregate Remaining Net Positive Adjustments
shall be allocated pursuant to Section 6.1(c).




     (C) In making the allocations required under this Section 6.1(d)(xii),
the General Partner may apply whatever conventions or other methodology it
determines will satisfy the purpose of this Section 6.1(d)(xii).



     (e) Required Sale Gain or Loss. If the Partnership recognizes Required Sale Gain or Required
Sale Loss upon a sale of its assets in any taxable period, after giving effect to the special
allocations set forth in Section 6.1(d), such Required Sale Gain or Required Sale Loss
shall be allocated among the Partners in such a manner that, as of the end of such taxable period,
the Capital Account of each Partner shall be equal to the respective net amounts, positive or
negative, which would be distributed to them or for which they would be liable to the Partnership
under the Delaware Act, determined as if the Partnership were to (i) liquidate the assets of the
Partnership for an amount equal to the proceeds received by the Partnership in the Required Sale
and (ii) distribute the proceeds of such liquidation pursuant to Section 6.4(c).



     The Partners agree that the aggregate proceeds received by the Partners upon any sale of all
their interests in the Partnership in a Required Sale shall be distributed among the Partners in a
manner such that each Partner receives the same amount of proceeds as it would have received from
the Partnership if the Partnership had (i) sold all its assets for an amount equal to the aggregate
proceeds received by the Partners in the Required Sale, (ii) allocated Required Sale Gain among the
Partners in accordance with Section 6.1(e), and (iii) liquidated in accordance with
Section 6.4(c), assuming that the aggregate proceeds received by the Partners would be the
amount available for distribution after payment of all Partnership liabilities.



     Section 6.2 Allocations for Tax Purposes.



     (a) Except as otherwise provided herein, for federal income tax purposes, each item of income,
gain, loss and deduction shall be allocated among the Partners in the same manner as its
correlative item of “book” income, gain, loss or deduction is allocated pursuant to
Section 6.1.



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     (b) In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property or
Adjusted Property, items of income, gain, loss, depreciation, amortization and cost recovery
deductions shall be allocated for federal income tax purposes among the Partners as follows:




     (i) (A) In the case of a Contributed Property, such items attributable thereto shall be
allocated among the Partners in the manner provided under Section 704(c) of the Code that
takes into account the variation between the Agreed Value of such property and its adjusted
basis at the time of contribution; and (B) any item of Residual Gain or Residual Loss
attributable to a Contributed Property shall be allocated among the Partners in the same
manner as its correlative item of “book” gain or loss is allocated pursuant to
Section 6.1.




     (ii) (A) In the case of an Adjusted Property, such items shall (1) first, be allocated
among the Partners in a manner consistent with the principles of Section 704(c) of the Code
to take into account the Unrealized Gain or Unrealized Loss attributable to such property
and the allocations thereof pursuant to Section 5.5(d)(i) or
Section 5.5(d)(ii), and (2) second, in the event such property was originally a
Contributed Property, be allocated among the Partners in a manner consistent with
Section 6.1(b)(i)(A); and (B) any item of Residual Gain or Residual Loss
attributable to an Adjusted Property shall be allocated among the Partners in the same
manner as its correlative item of “book” gain or loss is allocated pursuant to
Section 6.1.




     (iii) The General Partner shall apply the principles of Treasury Regulation
Section 1.704-3(d) to eliminate Book-Tax Disparities, except as otherwise determined by the
General Partner with respect to goodwill contributed to the Partnership upon formation.



     (c) For the proper administration of the Partnership and for the preservation of uniformity of
the Limited Partner Interests (or any class or classes thereof), the General Partner shall (i)
adopt such conventions as it deems appropriate in determining the amount of depreciation,
amortization and cost recovery deductions; (ii) make special allocations for federal income tax
purposes of income (including gross income) or deductions; and (iii) amend the provisions of this
Agreement as appropriate (x) to reflect the proposal or promulgation of Treasury Regulations under
Section 704(b) or Section 704(c) of the Code or (y) otherwise to preserve or achieve uniformity of
the Limited Partner Interests (or any class or classes thereof). The General Partner may adopt
such conventions, make such allocations and make such amendments to this Agreement as provided in
this Section 6.2(c) only if such conventions, allocations or amendments would not have a
material adverse effect on the Partners, the holders of any class or classes of Limited Partner
Interests issued and Outstanding or the Partnership, and if such allocations are consistent with
the principles of Section 704 of the Code.



     (d) The General Partner may determine to depreciate or amortize the portion of an adjustment
under Section 743(b) of the Code attributable to unrealized appreciation in any Adjusted Property
(to the extent of the unamortized Book-Tax Disparity) using a predetermined rate derived from the
depreciation or amortization method and useful life applied to the Partnership’s common basis of
such property, despite any inconsistency of such approach with



59









 







Treasury Regulation Section 1.167(c)-l(a)(6) or any successor regulations thereto. If the
General Partner determines that such reporting position cannot reasonably be taken, the General
Partner may adopt depreciation and amortization conventions under which all purchasers acquiring
Limited Partner Interests in the same month would receive depreciation and amortization deductions,
based upon the same applicable rate as if they had purchased a direct interest in the Partnership’s
property. If the General Partner chooses not to utilize such aggregate method, the General Partner
may use any other depreciation and amortization conventions to preserve the uniformity of the
intrinsic tax characteristics of any Limited Partner Interests, so long as such conventions would
not have a material adverse effect on the Limited Partners or the Record Holders of any class or
classes of Limited Partner Interests.



     (e) In accordance with Treasury Regulation Section 1.1245-1(e), any gain allocated to the
Partners upon the sale or other taxable disposition of any Partnership asset shall, to the extent
possible, after taking into account other required allocations of gain pursuant to this
Section 6.2, be characterized as Recapture Income in the same proportions and to the same
extent as such Partners (or their predecessors in interest) have been allocated any deductions
directly or indirectly giving rise to the treatment of such gains as Recapture Income.



     (f) All items of income, gain, loss, deduction and credit recognized by the Partnership for
federal income tax purposes and allocated to the Partners in accordance with the provisions hereof
shall be determined without regard to any election under Section 754 of the Code that may be made
by the Partnership; provided, however, that such allocations, once made, shall be adjusted (in the
manner determined by the General Partner) to take into account those adjustments permitted or
required by Sections 734 and 743 of the Code.



     (g) Each item of Partnership income, gain, loss and deduction, for federal income tax
purposes, shall be determined on an annual basis and prorated on a monthly basis and shall be
allocated to the Partners as of the opening of the National Securities Exchange on which the Common
Units may then be listed or admitted for trading on the first Business Day of each month; provided,
however, that following an Initial Public Offering, such items for the period beginning on the
closing of the Initial Public Offering and ending on the last day of the month in which the Option
Closing Date or the expiration of the Over-Allotment Option occurs shall be allocated to the
Partners as of the opening of the National Securities Exchange on which the Common Units may then
be listed or admitted for trading on the first Business Day of the next succeeding month; and
provided, further, that gain or loss on a sale or other disposition of any assets of the
Partnership or any other extraordinary item of income or loss realized and recognized other than in
the ordinary course of business, as determined by the General Partner, shall be allocated to the
Partners as of the opening of the National Securities Exchange on which the Common Units may then
be listed or admitted for trading on the first Business Day of the month in which such gain or loss
is recognized for federal income tax purposes. The General Partner may revise, alter or otherwise
modify such methods of allocation to the extent permitted or required by Section 706 of the Code
and the regulations or rulings promulgated thereunder.



     (h) Allocations that would otherwise be made to a Limited Partner under the provisions of this
Article VI shall instead be made to the beneficial owner of Limited Partner Interests held
by a nominee in any case in which the nominee has furnished the identity of such



60









 







owner to the Partnership in accordance with Section 6031(c) of the Code or any other method
determined by the General Partner.



     Section 6.3 Requirement and Characterization of Distributions; Distributions to Record
Holders.



     (a) Except as described in Section 6.3(b)), within 45 days following the end of each Quarter
commencing with the Quarter ending on March 31, 2007, an amount equal to 100% of Available Cash
with respect to such Quarter shall, subject to Section 17-607 of the Delaware Act, be distributed
in accordance with this Article VI by the Partnership to the Partners as of the Record Date
selected by the General Partner. All amounts of Available Cash distributed by the Partnership on
any date from any source shall be deemed to be Operating Surplus until the sum of all amounts of
Available Cash theretofore distributed by the Partnership to the Partners pursuant to
Section 6.4 equals the Operating Surplus from the Closing Date through the close of the
immediately preceding Quarter. Any remaining amounts of Available Cash distributed by the
Partnership on such date shall, except as otherwise provided in Section 6.5, be deemed to
be “Capital Surplus.” All distributions required to be made under this Agreement shall be made
subject to Section 17-607 of the Delaware Act.



     (b) With respect to the distribution for the Quarter in which the Initial Public Offering
occurs, the amount of Available Cash distributed to the Partners in accordance with Section 6.3(a)
shall equal 100% of the Available Cash with respect to such Quarter multiplied by a fraction of
which the numerator is the number of days in the period commencing on the closing date of the
Initial Public Offering and ending on the last day of the Quarter in which the Initial Public
Offering occurs and of which the denominator is the number of days in such Quarter. The remaining
Available Cash with respect to such Quarter shall be distributed to the Partners of the Partnership
immediately prior to the closing of the Initial Public Offering pursuant to Section 6.3(a).



     (c) Notwithstanding Section 6.3(a), in the event of the dissolution and liquidation of
the Partnership, all receipts received during or after the Quarter in which the Liquidation Date
occurs shall be applied and distributed solely in accordance with, and subject to the terms and
conditions of, Section 12.4.



     (d) The General Partner may treat taxes paid by the Partnership on behalf of, or amounts
withheld with respect to, all or less than all of the Partners, as a distribution of Available Cash
to such Partners.



     (e) Each distribution in respect of a Partnership Interest shall be paid by the Partnership,
directly or through the Transfer Agent or through any other Person or agent, only to the Record
Holder of such Partnership Interest as of the Record Date set for such distribution. Such payment
shall constitute full payment and satisfaction of the Partnership’s liability in respect of such
payment, regardless of any claim of any Person who may have an interest in such payment by reason
of an assignment or otherwise.



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     Section 6.4 Distributions of Available Cash from Operating Surplus.



     (a) During Subordination Period. Available Cash with respect to any Quarter within the
Subordination Period that is deemed to be Operating Surplus pursuant to the provisions of
Section 6.3 or Section 6.5 shall, subject to Section 17-607 of the Delaware Act, be
distributed as follows, except as otherwise contemplated by Section 5.6(b) in respect of
other Partnership Securities issued pursuant thereto:




     (i) First, to the General Partner and the Unitholders holding Common Units, in
accordance with their respective Percentage Interests, until there has been distributed in
respect of each Common Unit then Outstanding an amount equal to the Minimum Quarterly
Distribution for such Quarter;




     (ii) Second, to the General Partner and the Unitholders holding Common Units, in
accordance with their respective Percentage Interests, until there has been distributed in
respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit
Arrearage existing with respect to such Quarter;




     (iii) Third, to the General Partner and the Unitholders holding Subordinated Units, in
accordance with their respective Percentage Interests, until there has been distributed in
respect of each Subordinated Unit then Outstanding an amount equal to the Minimum Quarterly
Distribution for such Quarter;




     (iv) Fourth, to the General Partner and all Unitholders, in accordance with their
respective Percentage Interests, until there has been distributed in respect of each Unit
then Outstanding an amount equal to the excess of the First Target Distribution over the
Minimum Quarterly Distribution for such Quarter;




     (v) Fifth, (A) to the General Partner in accordance with its Percentage Interest; (B)
13% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) to all
Unitholders, Pro Rata, a percentage equal to 100% less the sum of the percentages applicable
to subclauses (A) and (B) of this clause (v) until there has been distributed in respect of
each Unit then Outstanding an amount equal to the excess of the Second Target Distribution
over the First Target Distribution for such Quarter; and




     (vi) Sixth, (A) to the General Partner in accordance with its Percentage Interest; (B)
23% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) to all
Unitholders, Pro Rata, a percentage equal to 100% less the sum of the percentages applicable
to subclauses (A) and (B) of this clause (vi) until there has been distributed in respect of
each Unit then Outstanding an amount equal to the excess of the Third Target Distribution
over the Second Target Distribution for such Quarter; and




     (vii) Thereafter, (A) to the General Partner in accordance with its Percentage
Interest, (B) 48% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) to
all Unitholders, Pro Rata, a percentage equal to 100% less the sum of the percentages
applicable to subclauses (A) and (B) of this subclause (vii);



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provided, however, if the Minimum Quarterly Distribution, the First Target Distribution, the Second
Target Distribution and the Third Target Distribution have been reduced to zero pursuant to the
second sentence of Section 6.6(a), the distribution of Available Cash that is deemed to be
Operating Surplus with respect to any Quarter will be made solely in accordance with this
Section 6.4(a)(vii).




     (b) After Subordination Period. Available Cash with respect to any Quarter after the
Subordination Period that is deemed to be Operating Surplus pursuant to the provisions of
Section 6.3 or Section 6.5, subject to Section 17-607 of the Delaware Act, shall be
distributed as follows, except as otherwise required by Section 5.6(b) in respect of
additional Partnership Securities issued pursuant thereto:




     (i) First, 100% to the General Partner and the Unitholders in accordance with their
respective Percentage Interests, until there has been distributed in respect of each Unit
then Outstanding an amount equal to the Minimum Quarterly Distribution for such Quarter;




     (ii) Second, 100% to the General Partner and the Unitholders in accordance with their
respective Percentage Interests, until there has been distributed in respect of each Unit
then Outstanding an amount equal to the excess of the First Target Distribution over the
Minimum Quarterly Distribution for such Quarter;




     (iii) Third, (A) to the General Partner in accordance with its Percentage Interest; (B)
13% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) to all
Unitholders, Pro Rata, a percentage equal to 100% less the sum of the percentages applicable
to subclauses (A) and (B) of this clause (iii), until there has been distributed in respect
of each Unit then Outstanding an amount equal to the excess of the Second Target
Distribution over the First Target Distribution for such Quarter; and




     (iv) Fourth, (A) to the General Partner in accordance with its Percentage Interest; (B)
23% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) to all
Unitholders, Pro Rata, a percentage equal to 100% less the sum of the percentages applicable
to subclauses (A) and (B) of this clause (iv), until there has been distributed in respect
of each Unit then Outstanding an amount equal to the excess of the Third Target Distribution
over the Second Target Distribution for such Quarter; and




     (v) Thereafter, (A) to the General Partner in accordance with its Percentage Interest;
(B) 48% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) to all
Unitholders, Pro Rata, a percentage equal to 100% less the sum of the percentages applicable
to subclause (A) and (B) of this clause (v);


provided, however, if the Minimum Quarterly Distribution, the First Target Distribution, the Second
Target Distribution and the Third Target Distribution have been reduced to zero pursuant to the
second sentence of Section 6.6(a), the distribution of Available Cash that is deemed to be
Operating Surplus with respect to any Quarter will be made solely in accordance with this
Section 6.4(b)(v).




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     (c) Required Sale. The proceeds of any Required Sale remaining after the payment of costs and
liabilities payable pursuant to Section 12.4(b) shall be distributed as follows, except as
otherwise contemplated by Section 5.6 in respect of other Partnership Securities issued
pursuant thereto:




     (i) to all Unitholders holding Common Units, Pro Rata until each Common Unit then
Outstanding receives the sum of (1) its Initial Unit Price multiplied by the Required Sale
Premium, (2) the Minimum Quarterly Distribution for the Quarter during which the Required
Sale occurs, reduced by any distribution pursuant to Section 6.4(a)(i) or Section 6.4(b)(i)
with respect to such Common Units for such Quarter (the amount determined pursuant to this
clause (2) is hereafter defined as “Unpaid MQD”), and (3) any then existing Cumulative
Common Unit Arrearage;




     (ii) Second, if a Required Sale occurs prior to the conversion of the last Outstanding
Subordinated Unit (x) to the General Partner in accordance with its Percentage Interest and
(y) to all Unitholders holding Subordinated Units, Pro Rata, a percentage equal to 100% less
the percentage applicable to subclause (x) of this clause (ii), until there has been
distributed in respect of each Subordinated Unit then Outstanding an amount equal to the sum
of (1) its Unrecovered Initial Unit Price, and (2) the Minimum Quarterly Distribution for
the Quarter during which the Required Sale occurs reduced by any distribution pursuant to
Section 6.4(a)(iii) with respect to such Subordinated Units for such Quarter; and




     (iii) Third, to the General Partner and all Unitholders, in accordance with their
respective Percentage Interests, until there has been distributed in respect of each Unit
then Outstanding an amount equal to the excess of the First Target Distribution over the
Minimum Quarterly Distribution for such Quarter;




     (iv) Fourth, (A) to the General Partner in accordance with its Percentage Interest; (B)
13% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) to all
Unitholders, Pro Rata, a percentage equal to 100% less the sum of the percentages applicable
to subclauses (A) and (B) of this clause (iv) until there has been distributed in respect of
each Unit then Outstanding an amount equal to the excess of the Second Target Distribution
over the First Target Distribution for such Quarter; and




     (v) Fifth, (A) to the General Partner in accordance with its Percentage Interest; (B)
23% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) to all
Unitholders, Pro Rata, a percentage equal to 100% less the sum of the percentages applicable
to subclauses (A) and (B) of this clause (v) until there has been distributed in respect of
each Unit then Outstanding an amount equal to the excess of the Third Target Distribution
over the Second Target Distribution for such Quarter; and




     (vi) Thereafter, (A) to the General Partner in accordance with its Percentage Interest,
(B) 48% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) to all
Unitholders, Pro Rata, a percentage equal to 100% less the sum of the percentages applicable
to subclauses (A) and (B) of this subclause (vii);



64









 





     Section 6.5 Distributions of Available Cash from Capital Surplus.



     Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section
6.3(a) shall, subject to Section 17-607 of the Delaware Act, be distributed, unless the
provisions of Section 6.3 require otherwise, 100% to the General Partner and the
Unitholders in accordance with their respective Percentage Interests, until a hypothetical holder
of a Common Unit acquired on the Closing Date has received with respect to such Common Unit, during
the period since the Closing Date through such date, distributions of Available Cash that are
deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price. Available
Cash that is deemed to be Capital Surplus shall then be distributed to the General Partner and all
Unitholders holding Common Units and all Unitholders holding Class C Units, in accordance with
their respective Percentage Interests, until there has been distributed in respect of each Common
Unit and Class C Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage.
Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be
distributed in accordance with Section 6.4.



     Section 6.6 Adjustment of Minimum Quarterly Distribution and Target Distribution Levels.



     (a) The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution,
Third Target Distribution, Common Unit Arrearages, and Cumulative Common Unit Arrearages shall be
proportionately adjusted in the event of any distribution, combination or subdivision (whether
effected by a distribution payable in Units or otherwise) of Units or other Partnership Securities
in accordance with Section 5.10. In the event of a distribution of Available Cash that is
deemed to be from Capital Surplus, the then applicable Minimum Quarterly Distribution, First Target
Distribution, Second Target Distribution and Third Target Distribution, shall be adjusted
proportionately downward to equal the product obtained by multiplying the otherwise applicable
Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third
Target Distribution, as the case may be, by a fraction of which the numerator is the Unrecovered
Initial Unit Price of the Common Units immediately after giving effect to such distribution and of
which the denominator is the Unrecovered Initial Unit Price of the Common Units immediately prior
to giving effect to such distribution.



     (b) The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution
and Third Target Distribution shall also be subject to adjustment pursuant to Section 5.12
and Section 6.9.



     Section 6.7 Special Provisions Relating to the Holders of Subordinated Units and Class C
Units.



     (a) Except with respect to the right to vote on or approve matters requiring the vote or
approval of a percentage of the holders of Outstanding Common Units and the right to participate in
allocations of income, gain, loss and deduction and distributions made with respect to Common
Units, the holder of a Subordinated Unit shall have all of the rights and obligations of a
Unitholder holding Common Units hereunder; provided, however, that immediately upon



65









 







the conversion of Subordinated Units into Common Units pursuant to Section 5.7 or
Section 5.8, as applicable, the Unitholder holding a Subordinated Unit shall possess all of
the rights and obligations of a Unitholder holding Common Units hereunder, including the right to
vote as a Common Unitholder and the right to participate in allocations of income, gain, loss and
deduction and distributions made with respect to Common Units; provided, however, that such
converted Subordinated Units shall remain subject to the provisions of Section 5.5(c)(ii),
Section 6.1(d)(x)(A), Section 6.7(b) and Section 6.7(c).



     (b) A Unitholder shall not be permitted to transfer a Subordinated Unit or a Subordinated Unit
that has converted into a Common Unit pursuant to Section 5.7 or Section 5.8, as
applicable, (other than a transfer to an Affiliate) if the remaining balance in the transferring
Unitholder’s Capital Account with respect to the retained Subordinated Units or Retained Converted
Subordinated Units would be negative after giving effect to the allocation under
Section 5.5(c)(ii)(B).



     (c) The Unitholder holding a Common Unit that has resulted from the conversion of a
Subordinated Unit pursuant to Section 5.7 or Section 5.8, as applicable, shall not
be issued a Common Unit Certificate pursuant to Section 4.1, and shall not be permitted to
transfer such Common Units to a Person that is not an Affiliate of the holder until such time as
the General Partner determines, based on advice of counsel, that each such Common Unit should have,
as a substantive matter, like intrinsic economic and federal income tax characteristics, in all
material respects, to the intrinsic economic and federal income tax characteristics of an Initial
Common Unit. In connection with the condition imposed by this Section 6.7(c), the General
Partner may take whatever steps are required to provide economic uniformity to such Common Units in
preparation for a transfer of such Common Units, including the application of
Section 5.5(c)(ii), Section 6.1(d)(x) and Section 6.7(b); provided,
however, that no such steps may be taken that would have a material adverse effect on the
Unitholders holding Common Units represented by Common Unit Certificates. For purposes of this
Section 6.7(c), a Common Unit that has resulted from the conversion of a Subordinated Unit
shall have like intrinsic economic and United States federal income tax characteristics if each
such Common Unit (i) has the same right to cash distributions pursuant to Section 6.4 and
Section 6.5 as does an Initial Common Unit, (ii) has a Per Unit Capital Amount equal to the
Per Unit Capital Amount for an Initial Common Unit and (iii) is treated the same for United States
federal income tax purposes as an Initial Common Unit in the hands of a purchaser.



     (d) Except with respect to the right to vote on or approve matters requiring the vote or
approval of a percentage of the holders of Outstanding Common Units and the right to participate in
allocations of income, gain, loss and deduction and distributions made with respect to Common
Units, the holder of a Class C Unit shall have all the rights and obligations of a Unitholder
holding Common Units; provided, however, that immediately upon the conversion of Class C Units into
Common Units pursuant to Section 5.12, a Unitholder holding a Class C Unit shall possess
all the rights and obligations of a Unitholder holding Common Units hereunder, including the right
to vote as a Common Unitholder and the right to participate in allocations of income, gain, loss
and deduction and distributions made with respect to Common Units; provided, however, that such
converted Class C Units shall remain subject to the provisions of Section 6.1(d)(x)(B) and
Section 6.7(e).



66









 





     (e) The holder or holders of Common Units resulting from the conversion pursuant to
Section 5.12(f) of any Class C Units pursuant to Section 5.12 shall not be issued a
Common Unit Certificate pursuant to Section 4.1, and shall not be permitted to transfer
such Common Units until such time as the General Partner determines, based on advice of counsel,
that each such Common Unit should have, as a substantive matter, like intrinsic economic and
federal income tax characteristics, in all material respects, to the intrinsic economic and federal
income tax characteristics of an Initial Common Unit. In connection with the condition imposed by
this Section 6.7(e), the General Partner may take whatever steps are required to provide
economic uniformity to such Common Units, including the application of Section
6.1(d)(x)(B); provided, however, that no such steps may be taken that would have a material
adverse effect on the Unitholders holding Common Units represented by Common Unit Certificates.
For purposes of this Section 6.7(e), a Common Unit that has resulted from the conversion of
a Class C Unit shall have like intrinsic economic and United States federal income tax
characteristics if each such Common Unit (i) has the same right to cash distributions pursuant to
Section 6.4 and Section 6.5 as does an Initial Common Unit, (ii) has a Per Unit
Capital Amount equal to the Per Unit Capital Amount for an Initial Common Unit and (iii) is treated
the same for United States federal income tax purposes as an Initial Common Unit in the hands of a
purchaser.



     Section 6.8 Special Provisions Relating to the Holders of Incentive Distribution Rights.
Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Incentive
Distribution Rights (a) shall (i) possess the rights and obligations provided in this Agreement
with respect to a Limited Partner pursuant to Article III and Article VII and (ii)
have a Capital Account as a Partner pursuant to Section 5.5 and all other provisions
related thereto and (b) shall not (i) be entitled to vote on any matters requiring the approval or
vote of the holders of Outstanding Units, except as provided by law, (ii) be entitled to any
distributions other than as provided in Section 6.4(a)(v), Section 6.4(a)(vi),
Section 6.4(a)(vii), Section 6.4(b)(iii), Section 6.4(b)(iv), Section
6.4(b)(v) and Section 12.4 or (iii) be allocated items of income, gain, loss or
deduction other than as specified in this Article VI.



     Section 6.9 Entity-Level Taxation. If legislation is enacted or the interpretation of
existing language is modified by a governmental taxing authority so that a Group Member is treated
as an association taxable as a corporation or is otherwise subject to an entity-level tax for
federal, state or local income tax purposes, then the General Partner may reduce the Minimum
Quarterly Distribution, the First Target Distribution, the Second Target Distribution and the Third
Target Distribution by the amount of income taxes that are payable by reason of any such new
legislation or interpretation (the “Incremental Income Taxes”), or any portion thereof selected by
the General Partner, in the manner provided in this Section 6.9. If the General Partner elects to
reduce the Minimum Quarterly Distribution, the First Target Distribution, the Second Target
Distribution and the Third Target Distribution for any Quarter with respect to all or a portion of
any Incremental Income Taxes, the General Partner shall estimate for such Quarter the Partnership
Group’s aggregate liability (the “Estimated Incremental Quarterly Tax Amount”) for all (or the
relevant portion of) such Incremental Income Taxes; provided that any difference between such
estimate and the actual tax liability for Incremental Income Taxes (or the relevant portion
thereof) for such Quarter may, to the extent determined by the General Partner be taken into
account in determining the Estimated Incremental Quarterly Tax Amount with respect to each Quarter
in which any such difference can be determined. For each such Quarter, the Minimum Quarterly
Distribution, First Target Distribution, Second Target



67









 







Distribution and Third Target Distribution, shall be the product obtained by multiplying (a)
the amounts therefor that are set out herein prior to the application of this Section 6.9
times (b) the quotient obtained by dividing (i) Available Cash with respect to such Quarter by (ii)
the sum of Available Cash with respect to such Quarter and the Estimated Incremental Quarterly Tax
Amount for such Quarter, as determined by the General Partner. For purposes of the foregoing,
Available Cash with respect to a Quarter will be deemed reduced by the Estimated Incremental
Quarterly Tax Amount for that Quarter.



ARTICLE VII.




Management and Operation of Business




     Section 7.1 Management.



     (a) The General Partner shall conduct, direct and manage all activities of the Partnership.
Except as otherwise expressly provided in this Agreement, all management powers over the business
and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited
Partner shall have any management power over the business and affairs of the Partnership. In
addition to the powers now or hereafter granted a general partner of a limited partnership under
applicable law or that are granted to the General Partner under any other provision of this
Agreement, the General Partner, subject to Section 7.3, shall have full power and authority
to do all things and on such terms as it determines to be necessary or appropriate to conduct the
business of the Partnership, to exercise all powers set forth in Section 2.5 and to
effectuate the purposes set forth in Section 2.4, including the following:




     (i) the making of any expenditures, the lending or borrowing of money, the assumption
or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance
of evidences of indebtedness, including indebtedness that is convertible into Partnership
Securities, and the incurring of any other obligations;




     (ii) the making of tax, regulatory and other filings, or rendering of periodic or other
reports to governmental or other agencies having jurisdiction over the business or assets of
the Partnership;




     (iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or
exchange of any or all of the assets of the Partnership or the merger or other combination
of the Partnership with or into another Person (the matters described in this clause (iii)
being subject, however, to any prior approval that may be required by Section 7.3
and Article XIV);




     (iv) the use of the assets of the Partnership (including cash on hand) for any purpose
consistent with the terms of this Agreement, including the financing of the conduct of the
operations of the Partnership Group; subject to Section 7.6(a), the lending of funds
to other Persons (including other Group Members); the repayment or guarantee of obligations
of any Group Member; and the making of capital contributions to any Group Member;



68









 






     (v) the negotiation, execution and performance of any contracts, conveyances or other
instruments (including instruments that limit the liability of the Partnership under
contractual arrangements to all or particular assets of the Partnership, with the other
party to the contract to have no recourse against the General Partner or its assets other
than its interest in the Partnership, even if same results in the terms of the transaction
being less favorable to the Partnership than would otherwise be the case);




     (vi) the distribution of Partnership cash;




     (vii) the selection and dismissal of employees (including employees having titles such
as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside
attorneys, accountants, consultants and contractors and the determination of their
compensation and other terms of employment or hiring;




     (viii) the maintenance of insurance for the benefit of the Partnership Group, the
Partners and Indemnitees;




     (ix) the formation of, or acquisition of an interest in, and the contribution of
property and the making of loans to, any further limited or general partnerships, joint
ventures, corporations, limited liability companies or other relationships (including the
acquisition of interests in, and the contributions of property to, any Group Member from
time to time) subject to the restrictions set forth in Section 2.4;




     (x) the control of any matters affecting the rights and obligations of the Partnership,
including the bringing and defending of actions at law or in equity and otherwise engaging
in the conduct of litigation, arbitration or mediation and the incurring of legal expense
and the settlement of claims and litigation;




     (xi) the indemnification of any Person against liabilities and contingencies to the
extent permitted by law;




     (xii) the entering into of listing agreements with any National Securities Exchange and
the delisting of some or all of the Limited Partner Interests from, or requesting that
trading be suspended on, any such exchange (subject to any prior approval that may be
required under Section 4.8);




     (xiii) the purchase, sale or other acquisition or disposition of Partnership
Securities, or the issuance of options, rights, warrants and appreciation rights relating to
Partnership Securities;




     (xiv) the undertaking of any action in connection with the Partnership’s participation
in any Group Member; and




     (xv) the entering into of agreements with any of its Affiliates to render services to a
Group Member or to itself in the discharge of its duties as General Partner of the
Partnership.



69









 





     (b) Notwithstanding any other provision of this Agreement, any Group Member Agreement, the
Delaware Act or any applicable law, rule or regulation, each of the Partners and each other Person
who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms
the execution, delivery and performance by the parties thereto of this Agreement, any Group Member
Agreement, the Purchase Agreement, the Second Round Purchase Agreement, the Registration Rights
Agreement, the Omnibus Agreement, the Contribution Agreement and the Midstream Services and Gas
Dedication Agreement; (ii) agrees that the General Partner (on its own or through any officer of
the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause
(i) of this sentence and the other agreements, acts, transactions and matters described in or
contemplated by the Purchase Agreement on behalf of the Partnership without any further act,
approval or vote of the Partners or the other Persons who may acquire an interest in Partnership
Securities; and (iii) agrees that the execution, delivery or performance by the General Partner,
any Group Member or any Affiliate of any of them of this Agreement or any agreement authorized or
permitted under this Agreement (including the exercise by the General Partner or any Affiliate of
the General Partner of the rights accorded pursuant to Article XV) shall not constitute a
breach by the General Partner of any duty that the General Partner may owe the Partnership or the
Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty
stated or implied by law or equity.



     Section 7.2 Certificate of Limited Partnership. The General Partner has caused the
Certificate of Limited Partnership to be filed with the Secretary of State of the State of Delaware
as required by the Delaware Act. The General Partner shall use all reasonable efforts to cause to
be filed such other certificates or documents that the General Partner determines to be necessary
or appropriate for the formation, continuation, qualification and operation of a limited
partnership (or a partnership in which the limited partners have limited liability) in the State of
Delaware or any other state in which the Partnership may elect to do business or own property. To
the extent the General Partner determines such action to be necessary or appropriate, the General
Partner shall file amendments to and restatements of the Certificate of Limited Partnership and do
all things to maintain the Partnership as a limited partnership (or a partnership or other entity
in which the limited partners have limited liability) under the laws of the State of Delaware or of
any other state in which the Partnership may elect to do business or own property. Subject to the
terms of Section 3.4(a), the General Partner shall not be required, before or after filing,
to deliver or mail a copy of the Certificate of Limited Partnership, any qualification document or
any amendment thereto to any Limited Partner.



     Section 7.3 Restrictions on the General Partner’s Authority. Except as provided in
Article XII and Article XIV, the General Partner may not sell, exchange or
otherwise dispose of all or substantially all of the assets of the Partnership Group, taken as a
whole, in a single transaction or a series of related transactions (including by way of merger,
consolidation, other combination or sale of ownership interests of the Partnership’s Subsidiaries)
without the approval of holders of a Unit Majority; provided, however, that this provision shall
not preclude or limit the General Partner’s ability to mortgage, pledge, hypothecate or grant a
security interest in all or substantially all of the assets of the Partnership Group and shall not
apply to any forced sale of any or all of the assets of the Partnership Group pursuant to the
foreclosure of, or other realization upon, any such encumbrance. Without the approval of holders of
a Unit Majority, the General Partner shall not, on behalf of the Partnership, except as permitted
under Section 4.6,



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     Section 11.1 and Section 11.2, elect or cause the Partnership to elect a
successor general partner of the Partnership.



     Section 7.4 Reimbursement of the General Partner.



     (a) Except as provided in this Section 7.4 and elsewhere in this Agreement, the
General Partner shall not be compensated for its services as a general partner or managing member
of any Group Member.



     (b) The General Partner shall be reimbursed on a monthly basis, or such other basis as the
General Partner may determine, for (i) all direct and indirect expenses it incurs or payments it
makes on behalf of the Partnership Group (including salary, bonus, incentive compensation and other
amounts paid to any Person, including Affiliates of the General Partner to perform services for the
Partnership Group or for the General Partner in the discharge of its duties to the Partnership
Group), and (ii) all other expenses allocable to the Partnership Group or otherwise incurred by the
General Partner in connection with operating the Partnership Group’s business (including expenses
allocated to the General Partner by its Affiliates). The General Partner shall determine the
expenses that are allocable to the Partnership Group. Reimbursements pursuant to this Section
7.4 shall be in addition to any reimbursement to the General Partner as a result of
indemnification pursuant to Section 7.7.



     (c) Subject to the restrictions on the number of Partnership Units issuable under the LTIP and
subject to the Investors’ Rights Agreement, the General Partner, without the approval of the
Limited Partners (who shall have no right to vote in respect thereof), may propose and adopt on
behalf of the Partnership employee benefit plans, employee programs and employee practices
(including plans, programs and practices involving the issuance of Partnership Securities or
options to purchase or rights, warrants or appreciation rights relating to Partnership Securities),
or cause the Partnership to issue Partnership Securities in connection with, or pursuant to, any
employee benefit plan, employee program or employee practice maintained or sponsored by the General
Partner, Group Member or any Affiliates in each case for the benefit of employees of the General
Partner or any of its Affiliates, in respect of services performed, directly or indirectly, for the
benefit of the Partnership Group. The Partnership agrees to issue and sell to the General Partner
or any of its Affiliates any Partnership Securities that the General Partner or such Affiliates are
obligated to provide to any employees pursuant to any such employee benefit plans, employee
programs or employee practices. Expenses incurred by the General Partner in connection with any
such plans, programs and practices (including the net cost to the General Partner or such
Affiliates of Partnership Securities purchased by the General Partner or such Affiliates from the
Partnership to fulfill options or awards under such plans, programs and practices) shall be
reimbursed in accordance with Section 7.4(b). Any and all obligations of the General
Partner under any employee benefit plans, employee programs or employee practices adopted by the
General Partner as permitted by this Section 7.4(c) shall constitute obligations of the
General Partner hereunder and shall be assumed by any successor General Partner approved pursuant
to Section 11.1 or Section 11.2 or the transferee of or successor to all of the
General Partner’s General Partner Interest (represented by General Partner Units) pursuant to
Section 4.6.



     Section 7.5 Outside Activities.



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     (a) After the Closing Date, the General Partner, for so long as it is the General Partner of
the Partnership (i) agrees that its sole business will be to act as a general partner or managing
member, as the case may be, of the Partnership and any other partnership or limited liability
company of which the Partnership is, directly or indirectly, a partner or member and to undertake
activities that are ancillary or related thereto (including being a limited partner in the
Partnership) and (ii) shall not engage in any business or activity or incur any debts or
liabilities except in connection with or incidental to (A) its performance as general partner or
managing member, if any, of one or more Group Members or (B) the acquiring, owning or disposing of
debt or equity securities in any Group Member.



     (b) It shall be deemed not to be a breach of any duty (including any fiduciary duty) existing
hereunder, at law, in equity or otherwise, or any other obligation of any type whatsoever of (i)
any Indemnitee to engage in outside business interests and activities in preference to or to the
exclusion of the Partnership or in direct competition with the Partnership, except as provided in
the Omnibus Agreement; provided such Indemnitee does not engage in such business or activity as a
result of or using confidential or proprietary information provided by or on behalf of the
Partnership to such Indemnitee or (ii) any director, officer or employee of the General Partner to
be a director, officer, employee, manager or consultant of any Affiliate of an Indemnitee, provided
that the Board of Directors is advised of such other relationship and does not object thereto; and
further, provided, that such director, officer or employee does not engage in such business or
activity as a result of or using confidential or proprietary information provided by or on behalf
of the Partnership to such Person.



     (c) Except as set forth in the Omnibus Agreement, none of the Indemnitees shall have any
obligation hereunder or as a result of any duty expressed or implied by law, in equity or otherwise
to present business opportunities to the Partnership that may become available to such Indemnitees
or their Affiliates or of which directors, officers or employees of the General Partner acquire
knowledge other than while serving in such capacity. None of any Group Member, any Limited Partner
or any other Person shall have any rights by virtue of this Agreement, any Group Member Agreement,
or the partnership relationship established hereby in any business ventures of any Indemnitee.



     (d) Notwithstanding anything to the contrary in this Agreement, to the extent that any
provisions of this Section 7.5 purport or are interpreted to have the effect of restricting,
eliminating or otherwise modifying the duties (including fiduciary duties) that might otherwise
arise, as a result of the Delaware Act or other applicable law, be owed by the General Partner or
the directors or officers of the General Partner to the Partnership and its Limited Partners, or to
constitute a waiver or consent by the Limited Partners to any such restriction, elimination or
modification, such provisions in this Section 7.5 shall be deemed to have been approved by the
Partners, and the Partners hereby agree that such provisions shall replace or eliminate such
duties.



     Section 7.6 Loans from the General Partner; Loans or Contributions from the Partnership or
Group Members.



     (a) The General Partner or any of its Affiliates may lend to any Group Member, and any Group
Member may borrow from the General Partner or any of its Affiliates, funds needed



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or desired by the Group Member for such periods of time and in such amounts as the General
Partner may determine; provided, however, that in any such case the lending party may not charge
the borrowing party interest at a rate greater than the rate that would be charged the borrowing
party or impose terms less favorable to the borrowing party than would be charged or imposed on the
borrowing party by unrelated lenders on comparable loans made on an arm’s-length basis (without
reference to the lending party’s financial abilities or guarantees), all as determined by the
General Partner. The borrowing party shall reimburse the lending party for any costs (other than
any additional interest costs) incurred by the lending party in connection with the borrowing of
such funds. For purposes of this Section 7.6(a) and Section 7.6(b), the term “Group
Member” shall include any Affiliate of a Group Member that is controlled by the Group Member.



     (b) The Partnership may lend or contribute to any Group Member, and any Group Member may
borrow from the Partnership, funds on terms and conditions determined by the General Partner. No
Group Member may lend funds to the General Partner or any of its Affiliates (other than another
Group Member).



     (c) No borrowing by any Group Member or the approval thereof by the General Partner shall be
deemed to constitute a breach of any duty, expressed or implied, of the General Partner or its
Affiliates to the Partnership or the Limited Partners by reason of the fact that the purpose or
effect of such borrowing is directly or indirectly to (i) enable distributions to the General
Partner or its Affiliates (including in their capacities as Limited Partners) to exceed the General
Partner’s Percentage Interest of the total amount distributed to all partners or (ii) hasten the
expiration of the Subordination Period or the conversion of any Subordinated Units into Common
Units.



     Section 7.7 Indemnification.



     (a) To the fullest extent permitted by law but subject to the limitations expressly provided
in this Agreement, all Indemnitees shall be indemnified and held harmless by the Partnership from
and against any and all losses, claims, damages, liabilities, joint or several, expenses (including
legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts
arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any Indemnitee may be involved, or is threatened to be
involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the
Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable
judgment entered by a court of competent jurisdiction determining that, in respect of the matter
for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, the
Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal
matter, acted with knowledge that the Indemnitee’s conduct was unlawful; provided, further, no
indemnification pursuant to this Section 7.7 shall be available to the General Partner or
its Affiliates (other than a Group Member) with respect to its or their obligations incurred
pursuant to the Purchase Agreement, the Registration Rights Agreement, the Omnibus Agreement, the
Contribution Agreement, the Investors’ Rights Agreement or the Midstream Services and Gas
Dedication Agreement (other than obligations incurred by the General Partner on behalf of the
Partnership). Any indemnification pursuant to this Section 7.7 shall be made only out of
the assets of the Partnership, it being agreed that the General Partner shall not be



73









 







personally liable for such indemnification and shall have no obligation to contribute or loan
any monies or property to the Partnership to enable it to effectuate such indemnification.



     (b) To the fullest extent permitted by law, expenses (including legal fees and expenses)
incurred by an Indemnitee who is indemnified pursuant to Section 7.7(a) in defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership
prior to a determination that the Indemnitee is not entitled to be indemnified upon receipt by the
Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall
be determined that the Indemnitee is not entitled to be indemnified as authorized in this
Section 7.7.



     (c) The indemnification provided by this Section 7.7 shall be in addition to any other
rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the
holders of Outstanding Limited Partner Interests, as a matter of law or otherwise, both as to
actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity
(including any capacity under the Purchase Agreement), and shall continue as to an Indemnitee who
has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors,
assigns and administrators of the Indemnitee.



     (d) The Partnership may purchase and maintain (or reimburse the General Partner or its
Affiliates for the cost of) insurance, on behalf of the General Partner, its Affiliates and such
other Persons as the General Partner shall determine, against any liability that may be asserted
against, or expense that may be incurred by, such Person in connection with the Partnership’s
activities or such Person’s activities on behalf of the Partnership, regardless of whether the
Partnership would have the power to indemnify such Person against such liability under the
provisions of this Agreement.



     (e) For purposes of this Section 7.7, the Partnership shall be deemed to have
requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance
by it of its duties to the Partnership also imposes duties on, or otherwise involves services by,
it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee
with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within
the meaning of Section 7.7(a); and action taken or omitted by it with respect to any
employee benefit plan in the performance of its duties for a purpose reasonably believed by it to
be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for
a purpose that is in the best interests of the Partnership.



     (f) In no event may an Indemnitee subject the Limited Partners to personal liability by reason
of the indemnification provisions set forth in this Agreement.



     (g) An Indemnitee shall not be denied indemnification in whole or in part under this
Section 7.7 because the Indemnitee had an interest in the transaction with respect to which
the indemnification applies if the transaction was otherwise permitted by the terms of this
Agreement.



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     (h) The provisions of this Section 7.7 are for the benefit of the Indemnitees, their
heirs, successors, assigns and administrators and shall not be deemed to create any rights for the
benefit of any other Persons.



     (i) No amendment, modification or repeal of this Section 7.7 or any provision hereof
shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee
to be indemnified by the Partnership, nor the obligations of the Partnership to indemnify any such
Indemnitee under and in accordance with the provisions of this Section 7.7 as in effect
immediately prior to such amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment, modification or
repeal, regardless of when such claims may arise or be asserted.



     Section 7.8 Liability of Indemnitees.



     (a) Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall
be liable for monetary damages to the Partnership, the Limited Partners, or any other Persons who
have acquired interests in the Partnership Securities, for losses sustained or liabilities incurred
as a result of any act or omission of an Indemnitee unless there has been a final and
non-appealable judgment entered by a court of competent jurisdiction determining that, in respect
of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful
misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct
was criminal.



     (b) Subject to its obligations and duties as General Partner set forth in Section
7.1(a), the General Partner may exercise any of the powers granted to it by this Agreement and
perform any of the duties imposed upon it hereunder either directly or by or through its agents,
and the General Partner shall not be responsible for any misconduct or negligence on the part of
any such agent appointed by the General Partner in good faith.



     (c) To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary
duties) and liabilities relating thereto to the Partnership or to the Partners, the General Partner
and any other Indemnitee acting in connection with the Partnership’s business or affairs shall not
be liable to the Partnership or to any Partner for its good faith reliance on the provisions of
this Agreement.



     (d) Any amendment, modification or repeal of this Section 7.8 or any provision hereof
shall be prospective only and shall not in any way affect the limitations on the liability of the
Indemnitees under this Section 7.8 as in effect immediately prior to such amendment,
modification or repeal with respect to claims arising from or relating to matters occurring, in
whole or in part, prior to such amendment, modification or repeal, regardless of when such claims
may arise or be asserted.



     Section 7.9 Resolution of Conflicts of Interest; Standards of Conduct and Modification of
Duties.



     (a) Unless otherwise expressly provided in this Agreement or any Group Member Agreement,
whenever a potential conflict of interest exists or arises between the General Partner or any of
its Affiliates or an Indemnitee, on the one hand, and the Partnership, any Group



75









 







Member or any Partner, on the other, any resolution or course of action by the General Partner
or its Affiliates or an Indemnitee in respect of such conflict of interest shall be permitted and
deemed approved by all Partners, and shall not constitute a breach of this Agreement, of any Group
Member Agreement, of any agreement contemplated herein or therein, or of any duty stated or implied
by law or equity, if the resolution or course of action in respect of such conflict of interest is
(i) approved by Special Approval, (ii) approved by the vote of a majority of the Common Units
(excluding Common Units owned by the General Partner and its Affiliates), (iii) on terms no less
favorable to the Partnership than those generally being provided to or available from unrelated
third parties or (iv) fair and reasonable to the Partnership, taking into account the totality of
the relationships between the parties involved (including other transactions that may be
particularly favorable or advantageous to the Partnership). The General Partner shall be
authorized but not required in connection with its resolution of such conflict of interest to seek
Special Approval of such resolution, and the General Partner may also adopt a resolution or course
of action that has not received Special Approval. If Special Approval is not sought and the Board
of Directors determines that the resolution or course of action taken with respect to a conflict of
interest satisfies either of the standards set forth in clauses (iii) or (iv) above, then it shall
be presumed that, in making its decision, the Board of Directors acted in good faith, and in any
proceeding brought by any Limited Partner or by or on behalf of such Limited Partner or any other
Limited Partner or the Partnership challenging such approval, the Person bringing or prosecuting
such proceeding shall have the burden of overcoming such presumption.



     (b) Whenever the General Partner makes a determination or takes or declines to take any other
action, or any of its Affiliates causes it to do so, in its capacity as the general partner of the
Partnership as opposed to in its individual capacity, whether under this Agreement, any Group
Member Agreement or any other agreement contemplated hereby or otherwise, then, unless another
express standard is provided for in this Agreement, the General Partner, or such Affiliates causing
it to do so, shall make such determination or take or decline to take such other action in good
faith and shall not be subject to any other or different standards imposed by this Agreement, any
Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or any
other law, rule or regulation or at equity. In order for a determination or other action to be in
“good faith” for purposes of this Agreement, the Person or Persons making such determination or
taking or declining to take such other action must believe that the determination or other action
is in the best interests of the Partnership.



     (c) Whenever the General Partner makes a determination or takes or declines to take any other
action, or any of its Affiliates causes it to do so, in its individual capacity as opposed to in
its capacity as the general partner of the Partnership, whether under this Agreement, any Group
Member Agreement or any other agreement contemplated hereby or otherwise, then the General Partner,
or such Affiliates causing it to do so, are entitled to make such determination or to take or
decline to take such other action free of any fiduciary duty or obligation whatsoever to the
Partnership, any Limited Partner, and the General Partner, or such Affiliates causing it to do so,
shall not be required to act in good faith or pursuant to any other standard imposed by this
Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the
Delaware Act or any other law, rule or regulation or at equity. By way of illustration and not of
limitation, whenever the phrase, “at the option of the General Partner,” or some variation of that
phrase, is used in this Agreement, it indicates that the General Partner is acting in its
individual capacity. For the avoidance of doubt, whenever the General Partner votes or transfers



76









 







its Partnership Interests, or refrains from voting or transferring its Partnership Interests,
it shall be acting in its individual capacity. The General Partner’s organizational documents may
provide that determinations to take or decline to take any action in its individual, rather than
representative, capacity may or shall be determined by its members, if the General Partner is a
limited liability company, stockholders, if the General Partner is a corporation, or the members or
stockholders of the General Partner’s general partner, if the General Partner is a partnership.



     (d) Notwithstanding anything to the contrary in this Agreement, the General Partner and its
Affiliates shall have no duty or obligation, express or implied, to (i) sell or otherwise dispose
of any asset of the Partnership Group other than in the ordinary course of business or (ii) permit
any Group Member to use any facilities or assets of the General Partner and its Affiliates or any
Indemnitee, except as may be provided in contracts entered into from time to time specifically
dealing with such use. Any determination by the General Partner or any of its Affiliates or any
Indemnitee to enter into such contracts shall be at its option.



     (e) Except as expressly set forth in this Agreement, neither the General Partner nor any other
Indemnitee shall have any duties or liabilities, including fiduciary duties, to the Partnership or
any Limited Partner and the provisions of this Agreement, to the extent that they restrict,
eliminate or otherwise modify the duties and liabilities, including fiduciary duties, of the
General Partner or any other Indemnitee otherwise existing at law or in equity, are agreed by the
Partners to replace such other duties and liabilities of the General Partner or such other
Indemnitee.



     (f) The Unitholders hereby authorize the General Partner, on behalf of the Partnership as a
partner or member of a Group Member, to approve of actions by the general partner or managing
member of such Group Member similar to those actions permitted to be taken by the General Partner
pursuant to this Section 7.9.



     Section 7.10 Other Matters Concerning the General Partner.



     (a) The General Partner may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties.



     (b) The General Partner may consult with legal counsel, accountants, appraisers, management
consultants, investment bankers and other consultants and advisers selected by it, and any act
taken or omitted to be taken in reliance upon the opinion (including an Opinion of Counsel) of such
Persons as to matters that the General Partner reasonably believes to be within such Person’s
professional or expert competence shall be conclusively presumed to have been done or omitted in
good faith and in accordance with such opinion.



     (c) The General Partner shall have the right, in respect of any of its powers or obligations
hereunder, to act through any of its duly authorized officers, a duly appointed attorney or
attorneys-in-fact or the duly authorized officers of the Partnership.



     Section 7.11 Purchase or Sale of Partnership Securities. The General Partner may cause the
Partnership to purchase or otherwise acquire Partnership Securities; provided that,



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except as permitted pursuant to Section 4.10 or Section 4.12, the General
Partner may not cause any Group Member to purchase Subordinated Units. Such Partnership Securities
shall be held by the Partnership as treasury securities unless they are expressly cancelled by
action of an appropriate officer of the General Partner. As long as Partnership Securities are held
by any Group Member, such Partnership Securities shall not be considered Outstanding for any
purpose, except as otherwise provided herein. The General Partner or any Affiliate of the General
Partner may also purchase or otherwise acquire and sell or otherwise dispose of Partnership
Securities for its own account, subject to the provisions of Article IV and Article
X.



     Section 7.12 Registration Rights of the General Partner and its Affiliates.



     (a) If (i) the General Partner or any Affiliate of the General Partner (including for purposes
of this Section 7.12, any Person that is an Affiliate of the General Partner at the date
hereof notwithstanding that it may later cease to be an Affiliate of the General Partner) holds
Partnership Securities that it desires to sell and (ii) Rule 144 of the Securities Act (or any
successor rule or regulation to Rule 144) or another exemption from registration is not available
to enable such holder of Partnership Securities (the “Holder”) to dispose of the number of
Partnership Securities it desires to sell at the time it desires to do so without registration
under the Securities Act, then at the option and upon the request of the Holder, the Partnership
shall file with the Commission as promptly as practicable after receiving such request, and use all
commercially reasonable efforts to cause to become effective and remain effective for a period of
not less than six months following its effective date or such shorter period as shall terminate
when all Partnership Securities covered by such registration statement have been sold, a
registration statement under the Securities Act registering the offering and sale of the number of
Partnership Securities specified by the Holder; provided, however, that the Partnership shall not
be required to effect more than three registrations pursuant to Sections 7.12(a) and
7.12(b); provided, however, that if the Conflicts Committee determines in good faith that the
requested registration would be materially detrimental to the Partnership and its Partners because
such registration would (x) materially interfere with a significant acquisition, reorganization or
other similar transaction involving the Partnership, (y) require premature disclosure of material
information that the Partnership has a bona fide business purpose for preserving as confidential or
(z) render the Partnership unable to comply with requirements under applicable securities laws,
then the Partnership shall have the right to postpone such requested registration for a period of
not more than six months after receipt of the Holder’s request, such right pursuant to this
Section 7.12(a) or Section 7.12(b) not to be utilized more than once in any
twelve-month period. Except as provided in the preceding sentence, the Partnership shall be deemed
not to have used all commercially reasonable efforts to keep the registration statement effective
during the applicable period if it voluntarily takes any action that would result in Holders of
Partnership Securities covered thereby not being able to offer and sell such Partnership Securities
at any time during such period, unless such action is required by applicable law. In connection
with any registration pursuant to the first sentence, the Partnership shall (i) promptly prepare
and file (A) such documents as may be necessary to register or qualify the securities subject to
such registration under the securities laws of such states as the Holder shall reasonably request;
provided, however, that no such qualification shall be required in any jurisdiction where, as a
result thereof, the Partnership would become subject to general service of process or to taxation
or qualification to do business as a foreign corporation or partnership doing business in such
jurisdiction solely as a result of such registration, and (B) such documents as may be necessary



78









 







to apply for listing or to list the Partnership Securities subject to such registration on
such National Securities Exchange as the Holder shall reasonably request, and (ii) do any and all
other acts and things that may be necessary or appropriate to enable the Holder to consummate a
public sale of such Partnership Securities in such states. Except as set forth in Section
7.12(d), all costs and expenses of any such registration and offering (other than the
underwriting discounts and commissions) shall be paid by the Partnership, without reimbursement by
the Holder.



     (b) If, after the Initial Public Offering, any Holder holds Partnership Securities that it
desires to sell and Rule 144 of the Securities Act (or any successor rule or regulation to Rule
144) or another exemption from registration is not available to enable such Holder to dispose of
the number of Partnership Securities it desires to sell at the time it desires to do so without
registration under the Securities Act, then at the option and upon the request of the Holder, the
Partnership shall file with the Commission as promptly as practicable after receiving such request,
and use all commercially reasonable efforts to cause to become effective and remain effective for a
period of not less than six months following its effective date or such shorter period as shall
terminate when all Partnership Securities covered by such shelf registration statement have been
sold, a “shelf” registration statement covering the Partnership Securities specified by the Holder
on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the Commission; provided, however, that the Partnership shall not be required to effect
more than three registrations pursuant to Section 7.12(a) and this Section 7.12(b); and provided
further, however, that if the Conflicts Committee determines in good faith that any offering under,
or the use of any prospectus forming a part of, the shelf registration statement would be
materially detrimental to the Partnership and its Partners because such offering or use would (x)
materially interfere with a significant acquisition, reorganization or other similar transaction
involving the Partnership, (y) require premature disclosure of material information that the
Partnership has a bona fide business purpose for preserving as confidential or (z) render the
Partnership unable to comply with requirements under applicable securities laws, then the
Partnership shall have the right to suspend such offering or use for a period of not more than six
months after receipt of the Holder’s request, such right pursuant to Section 7.12(a) or
this Section 7.12(b) not to be utilized more than once in any twelve-month period. Except
as provided in the preceding sentence, the Partnership shall be deemed not to have used all
commercially reasonable efforts to keep the shelf registration statement effective during the
applicable period if it voluntarily takes any action that would result in Holders of Partnership
Securities covered thereby not being able to offer and sell such Partnership Securities at any time
during such period, unless such action is required by applicable law. In connection with any shelf
registration pursuant to this Section 7.12(b), the Partnership shall (i) promptly prepare
and file (A) such documents as may be necessary to register or qualify the securities subject to
such shelf registration under the securities laws of such states as the Holder shall reasonably
request; provided, however, that no such qualification shall be required in any jurisdiction where,
as a result thereof, the Partnership would become subject to general service of process or to
taxation or qualification to do business as a foreign corporation or partnership doing business in
such jurisdiction solely as a result of such shelf registration, and (B) such documents as may be
necessary to apply for listing or to list the Partnership Securities subject to such shelf
registration on such National Securities Exchange as the Holder shall reasonably request, and (ii)
do any and all other acts and things that may be necessary or appropriate to enable the Holder to
consummate a public sale of such Partnership Securities in such states. Except as set forth in
Section 7.12(d), all costs and expenses of any such shelf registration and



79









 







offering (other than the underwriting discounts and commissions) shall be paid by the
Partnership, without reimbursement by the Holder.



     (c) If the Partnership shall at any time propose to file a registration statement under the
Securities Act for an offering of equity securities of the Partnership for cash (other than an
offering relating solely to an employee benefit plan), the Partnership shall use all commercially
reasonable efforts to include such number or amount of securities held by any Holder in such
registration statement as the Holder shall request; provided, that the Partnership is not required
to make any effort or take any action to so include the securities of the Holder once the
registration statement becomes or is declared effective by the Commission, including any
registration statement providing for the offering from time to time of securities pursuant to Rule
415 of the Securities Act. If the proposed offering pursuant to this Section 7.12(c) shall
be an underwritten offering, then, in the event that the managing underwriter or managing
underwriters of such offering advise the Partnership and the Holder in writing that in their
opinion the inclusion of all or some of the Holder’s Partnership Securities would adversely and
materially affect the success of the offering and subject to any superior rights granted under the
Registration Rights Agreement, the Partnership shall include in such offering only that number or
amount, if any, of securities held by the Holder that, in the opinion of the managing underwriter
or managing underwriters, will not so adversely and materially affect the offering. Except as set
forth in Section 7.12(d), all costs and expenses of any such registration and offering
(other than the underwriting discounts and commissions) shall be paid by the Partnership, without
reimbursement by the Holder.



     (d) If underwriters are engaged in connection with any registration referred to in this
Section 7.12, the Partnership shall provide indemnification, representations, covenants,
opinions and other assurance to the underwriters in form and substance reasonably satisfactory to
such underwriters. Further, in addition to and not in limitation of the Partnership’s obligation
under Section 7.7, the Partnership shall, to the fullest extent permitted by law, indemnify
and hold harmless the Holder, its officers, directors and each Person who controls the Holder
(within the meaning of the Securities Act) and any agent thereof (collectively, “Indemnified
Persons”) from and against any and all losses, claims, damages, liabilities, joint or several,
expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or
other amounts arising from any and all claims, demands, actions, suits or proceedings, whether
civil, criminal, administrative or investigative, in which any Indemnified Person may be involved,
or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise
(hereinafter referred to in this Section 7.12(d) as a “claim” and in the plural as
“claims”) based upon, arising out of or resulting from any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under which any Partnership
Securities were registered under the Securities Act or any state securities or Blue Sky laws, in
any preliminary prospectus (if used prior to the effective date of such registration statement), or
in any summary or final prospectus or in any amendment or supplement thereto (if used during the
period the Partnership is required to keep the registration statement current), or arising out of,
based upon or resulting from the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements made therein not misleading;
provided, however, that the Partnership shall not be liable to any Indemnified Person to the extent
that any such claim arises out of, is based upon or results from an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration statement, such
preliminary,



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summary or final prospectus or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Partnership by or on behalf of such
Indemnified Person specifically for use in the preparation thereof.



     (e) The provisions of Sections 7.12(a), 7.12(b) and 7.12(c) shall
continue to be applicable with respect to the General Partner (and any of the General Partner’s
Affiliates), after it ceases to be a general partner of the Partnership, during a period of two
years subsequent to the effective date of such cessation and for so long thereafter as is required
for the Holder to sell all of the Partnership Securities with respect to which it has requested
during such two-year period inclusion in a registration statement otherwise filed or that a
registration statement be filed; provided, however, that the Partnership shall not be required to
file successive registration statements covering the same Partnership Securities for which
registration was demanded during such two-year period. The provisions of Section 7.12(d)
shall continue in effect thereafter.



     (f) The rights to cause the Partnership to register Partnership Securities pursuant to this
Section 7.12 may be assigned (but only with all related obligations) by a Holder to a
transferee or assignee of such Partnership Securities, provided (i) the Partnership is, within a
reasonable time after such transfer, furnished with written notice of the name and address of such
transferee or assignee and the Partnership Securities with respect to which such registration
rights are being assigned; and (ii) such transferee or assignee agrees in writing to be bound by
and subject to the terms set forth in this Section 7.12.



     (g) Any request to register Partnership Securities pursuant to this Section 7.12 shall
(i) specify the Partnership Securities intended to be offered and sold by the Person making the
request, (ii) express such Person’s present intent to offer such Partnership Securities for
distribution, (iii) describe the nature or method of the proposed offer and sale of Partnership
Securities, and (iv) contain the undertaking of such Person to provide all such information and
materials and take all action as may be required in order to permit the Partnership to comply with
all applicable requirements in connection with the registration of such Partnership Securities.



     Section 7.13 Reliance by Third Parties. Notwithstanding anything to the contrary in this
Agreement, any Person dealing with the Partnership shall be entitled to assume that the General
Partner and any officer of the General Partner authorized by the General Partner to act on behalf
of and in the name of the Partnership has full power and authority to encumber, sell or otherwise
use in any manner any and all assets of the Partnership and to enter into any authorized contracts
on behalf of the Partnership, and such Person shall be entitled to deal with the General Partner or
any such officer as if it were the Partnership’s sole party in interest, both legally and
beneficially. Each Limited Partner hereby waives any and all defenses or other remedies that may be
available against such Person to contest, negate or disaffirm any action of the General Partner or
any such officer in connection with any such dealing. In no event shall any Person dealing with the
General Partner or any such officer or its representatives be obligated to ascertain that the terms
of this Agreement have been complied with or to inquire into the necessity or expedience of any act
or action of the General Partner or any such officer or its representatives. Each and every
certificate, document or other instrument executed on behalf of the Partnership by the General
Partner or its representatives shall be conclusive evidence in favor of any and every Person
relying thereon or claiming thereunder that (a) at the time of the execution and delivery of such
certificate, document or instrument, this Agreement was in full



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force and effect, (b) the Person executing and delivering such certificate, document or
instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (c)
such certificate, document or instrument was duly executed and delivered in accordance with the
terms and provisions of this Agreement and is binding upon the Partnership.



ARTICLE VIII.




Books, Records, Accounting and Reports




     Section 8.1 Records and Accounting. The General Partner shall keep or cause to be kept at the
principal office of the Partnership appropriate books and records with respect to the Partnership’s
business, including all books and records necessary to provide to the Limited Partners any
information required to be provided pursuant to Section 3.4(a). Any books and records
maintained by or on behalf of the Partnership in the regular course of its business, including the
record of the Record Holders of Units or other Partnership Securities, books of account and records
of Partnership proceedings, may be kept on, or be in the form of, computer disks, hard drives,
punch cards, magnetic tape, photographs, micrographics or any other information storage device;
provided, that the books and records so maintained are convertible into clearly legible written
form within a reasonable period of time. The books of the Partnership shall be maintained, for
financial reporting purposes, on an accrual basis in accordance with U.S. GAAP.



     Section 8.2 Fiscal Year. The fiscal year of the Partnership shall be a fiscal year ending
December 31.



     Section 8.3 Reports.



     (a) As soon as practicable, but in no event later than 120 days after the close of each fiscal
year of the Partnership, the General Partner shall use its best efforts to cause to be mailed or
made available, by any reasonable means (including posting on or accessible through the
Partnership’s website) to each Record Holder of a Unit as of a date selected by the General
Partner, an annual report containing financial statements of the Partnership for such fiscal year
of the Partnership, presented in accordance with U.S. GAAP, including a balance sheet and
statements of operations, Partnership equity and cash flows, such statements to be audited by a
firm of independent public accountants selected by the General Partner.



     (b) As soon as practicable, but in no event later than 90 days after the close of each Quarter
except the last Quarter of each fiscal year, the General Partner shall use its best efforts to
cause to be mailed or made available, by any reasonable means (including posting on or accessible
through the Partnership’s website) to each Record Holder of a Unit, as of a date selected by the
General Partner, a report containing unaudited financial statements of the Partnership and such
other information as may be required by applicable law, regulation or rule of any National
Securities Exchange on which the Units are listed or admitted to trading, or as the General Partner
determines to be necessary or appropriate.



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ARTICLE IX.




Tax Matters




     Section 9.1 Tax Returns and Information. The Partnership shall timely file all returns of the
Partnership that are required for federal, state and local income tax purposes on the basis of the
accrual method and the taxable year or years that it is required by law to adopt, from time to
time, as determined by the General Partner. In the event the Partnership is required to use a
taxable year other than a year ending on December 31, the General Partner shall use reasonable
efforts to change the taxable year of the Partnership to a year ending on December 31. The tax
information reasonably required by Record Holders for federal and state income tax reporting
purposes with respect to a taxable year shall be furnished to them within 90 days of the close of
the calendar year in which the Partnership’s taxable year ends. The classification, realization
and recognition of income, gain, losses and deductions and other items shall be on the accrual
method of accounting for federal income tax purposes.



     Section 9.2 Tax Elections.



     (a) The Partnership shall make the election under Section 754 of the Code in accordance with
applicable regulations thereunder, subject to the reservation of the right to seek to revoke any
such election upon the General Partner’s determination that such revocation is in the best
interests of the Limited Partners. Notwithstanding any other provision herein contained, for the
purposes of computing the adjustments under Section 743(b) of the Code, after the Initial Public
Offering, the General Partner shall be authorized (but not required) to adopt a convention whereby
the price paid by a transferee of a Limited Partner Interest will be deemed to be the lowest quoted
closing price of the Limited Partner Interests on any National Securities Exchange on which such
Limited Partner Interests are listed or admitted to trading during the calendar month in which such
transfer is deemed to occur pursuant to Section 6.2(g) without regard to the actual price
paid by such transferee.



     (b) Except as otherwise provided herein, the General Partner shall determine whether the
Partnership should make any other elections permitted by the Code.



     Section 9.3 Tax Controversies. Subject to the provisions hereof, the General Partner is
designated as the Tax Matters Partner (as defined in the Code) and is authorized and required to
represent the Partnership (at the Partnership’s expense) in connection with all examinations of the
Partnership’s affairs by tax authorities, including resulting administrative and judicial
proceedings, and to expend Partnership funds for professional services and costs associated
therewith. Each Partner agrees to cooperate with the General Partner and to do or refrain from
doing any or all things reasonably required by the General Partner to conduct such proceedings.



     Section 9.4 Withholding. Notwithstanding any other provision of this Agreement, the General
Partner is authorized to take any action that may be required to cause the Partnership and other
Group Members to comply with any withholding requirements established under the Code or any other
federal, state or local law including pursuant to Sections 1441, 1442, 1445 and 1446 of the Code.
To the extent that the Partnership is required or elects to withhold and pay over to any taxing
authority any amount resulting from the allocation or distribution of income to any



83









 







Partner or assignee (including by reason of Section 1446 of the Code), the General Partner may
treat the amount withheld as a distribution of cash pursuant to Section 6.3 in the amount
of such withholding from such Partner.



ARTICLE X.




Admission of Partners




     Section 10.1 Admission of Initial Limited Partners. Upon the issuance by the Partnership of
Common Units, Subordinated Units and Incentive Distribution Rights to the General Partner, QRC and
the Initial Private Purchasers as described in Article V in connection with the Purchase Agreement,
the General Partner shall admit such Persons to the Partnership as Initial Limited Partners in
respect of the Common Units, Subordinated Units or Incentive Distribution Rights issued to them.



     Section 10.2 Admission of Limited Partners.



     (a) By acceptance of the transfer of any Limited Partner Interests in accordance with
Article IV or the acceptance of any Limited Partner Interests issued pursuant to
Article V or pursuant to a merger or consolidation pursuant to Article XIV, and
except as provided in Section 4.9, each transferee of, or other such Person acquiring, a
Limited Partner Interest (including any nominee holder or an agent or representative acquiring such
Limited Partner Interests for the account of another Person) (i) shall be admitted to the
Partnership as a Limited Partner with respect to the Limited Partner Interests so transferred or
issued to such Person when any such transfer, issuance or admission is reflected in the books and
records of the Partnership and such Limited Partner becomes the Record Holder of the Limited
Partner Interests so transferred, (ii) shall become bound by the terms of this Agreement, (iii)
represents that the transferee has the capacity, power and authority to enter into this Agreement,
(iv) grants the powers of attorney set forth in this Agreement and (v) makes the consents and
waivers contained in this Agreement, all with or without execution of this Agreement by such
Person. The transfer of any Limited Partner Interests and the admission of any new Limited Partner
shall not constitute an amendment to this Agreement. A Person may become a Limited Partner or
Record Holder of a Limited Partner Interest without the consent or approval of any of the Partners.
A Person may not become a Limited Partner without acquiring a Limited Partner Interest and until
such Person is reflected in the books and records of the Partnership as the Record Holder of such
Limited Partner Interest. The rights and obligations of a Person who is a Non-citizen Assignee
shall be determined in accordance with Section 4.9, and the rights and obligations of a
Person who is an Ineligible Assignee shall be determined in accordance with Section 4.11.



     (b) The name and mailing address of each Limited Partner shall be listed on the books and
records of the Partnership maintained for such purpose by the Partnership or the Transfer Agent.
The General Partner shall update the books and records of the Partnership from time to time as
necessary to reflect accurately the information therein (or shall cause the Transfer Agent to do
so, as applicable). A Limited Partner Interest may be represented by a Certificate, as provided in
Section 4.1.



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     (c) Any transfer of a Limited Partner Interest shall not entitle the transferee to share in
the profits and losses, to receive distributions, to receive allocations of income, gain, loss,
deduction or credit or any similar item or to any other rights to which the transferor was entitled
until the transferee becomes a Limited Partner pursuant to Section 10.2(a).



     Section 10.3 Admission of Successor General Partner. A successor General Partner approved
pursuant to Section 11.1 or Section 11.2 or the transferee of or successor to all
of the General Partner Interest pursuant to Section 4.6 who is proposed to be admitted as a
successor General Partner shall be admitted to the Partnership as the General Partner, effective
immediately prior to the withdrawal or removal of the predecessor or transferring General Partner,
pursuant to Section 11.1 or Section 11.2 or the transfer of the General Partner
Interest pursuant to Section 4.6, provided, however, that no such successor shall be
admitted to the Partnership until compliance with the terms of Section 4.6 has occurred and
such successor has executed and delivered such other documents or instruments as may be required to
effect such admission. Any such successor shall, subject to the terms hereof, carry on the business
of the members of the Partnership Group without dissolution.



     Section 10.4 Amendment of Agreement and Certificate of Limited Partnership. To effect the
admission to the Partnership of any Partner, the General Partner shall take all steps necessary or
appropriate under the Delaware Act to amend the records of the Partnership to reflect such
admission and, if necessary, to prepare as soon as practicable an amendment to this Agreement and,
if required by law, the General Partner shall prepare and file an amendment to the Certificate of
Limited Partnership, and the General Partner may for this purpose, among others, exercise the power
of attorney granted pursuant to Section 2.6.



ARTICLE XI.




Withdrawal or Removal of Partners




     Section 11.1 Withdrawal of the General Partner.



     (a) The General Partner shall be deemed to have withdrawn from the Partnership upon the
occurrence of any one of the following events (each such event herein referred to as an “Event of
Withdrawal”);




     (i) The General Partner voluntarily withdraws from the Partnership by giving written
notice to the other Partners;




     (ii) The General Partner transfers all of its rights as General Partner pursuant to
Section 4.6;




     (iii) The General Partner is removed pursuant to Section 11.2;




     (iv) The General Partner (A) makes a general assignment for the benefit of creditors;
(B) files a voluntary bankruptcy petition for relief under Chapter 7 of the United States
Bankruptcy Code; (C) files a petition or answer seeking for itself a liquidation,
dissolution or similar relief (but not a reorganization) under any law; (D) files an answer
or other pleading admitting or failing to contest the material allegations of a



85









 







petition filed against the General Partner in a proceeding of the type described in
clauses (A)-(C) of this Section 11.1(a)(iv); or (E) seeks, consents to or acquiesces
in the appointment of a trustee (but not a debtor-in-possession), receiver or liquidator of
the General Partner or of all or any substantial part of its properties;




     (v) A final and non-appealable order of relief under Chapter 7 of the United States
Bankruptcy Code is entered by a court with appropriate jurisdiction pursuant to a voluntary
or involuntary petition by or against the General Partner; or




     (vi) (A) in the event the General Partner is a corporation, a certificate of
dissolution or its equivalent is filed for the General Partner, or 90 days expire after the
date of notice to the General Partner of revocation of its charter without a reinstatement
of its charter, under the laws of its state of incorporation; (B) in the event the General
Partner is a partnership or a limited liability company, the dissolution and commencement of
winding up of the General Partner; (C) in the event the General Partner is acting in such
capacity by virtue of being a trustee of a trust, the termination of the trust; (D) in the
event the General Partner is a natural person, his death or adjudication of incompetency;
and (E) otherwise in the event of the termination of the General Partner.


If an Event of Withdrawal specified in Section 11.1(a)(iv), Section 11.1(a)(v), or
Section 11.1(a)(vi)(A), Section 11.1(a)(vi)(B), Section 11.1(a)(vi)(C) or
Section 11.1(a)(vi)(E) occurs, the withdrawing General Partner shall give notice to the
Limited Partners within 30 days after such occurrence. The Partners hereby agree that only the
Events of Withdrawal described in this Section 11.1 shall result in the withdrawal of the
General Partner from the Partnership.




     (b) Withdrawal of the General Partner from the Partnership upon the occurrence of an Event of
Withdrawal shall not constitute a breach of this Agreement under the following circumstances: (i)
at any time during the period beginning on the Closing Date and ending at 12:01 a.m., Eastern
Standard Time, on the first day of the first Quarter beginning after the tenth anniversary of the
Closing Date, the General Partner voluntarily withdraws by giving at least 90 days’ advance notice
of its intention to withdraw to the Limited Partners; provided, that prior to the effective date of
such withdrawal, the withdrawal is approved by Unitholders holding at least a majority of the
Outstanding Common Units (excluding Common Units held by the General Partner and its Affiliates)
and the General Partner delivers to the Partnership an Opinion of Counsel (“Withdrawal Opinion of
Counsel”) that such withdrawal (following the selection of the successor General Partner) would not
result in the loss of the limited liability of any Limited Partner or any Group Member or cause any
Group Member to be treated as an association taxable as a corporation or otherwise to be taxed as
an entity for federal income tax purposes (to the extent not already so treated or taxed); (ii) at
any time after 12:01 a.m., Eastern Standard Time, on the first day of the first Quarter beginning
after the tenth anniversary of the Closing Date, the General Partner voluntarily withdraws by
giving at least 90 days’ advance notice to the Unitholders, such withdrawal to take effect on the
date specified in such notice; (iii) at any time that the General Partner ceases to be the General
Partner pursuant to Section 11.1(a)(ii) or is removed pursuant to Section 11.2; or
(iv) notwithstanding clause (i) of this sentence, at any time that the General Partner voluntarily
withdraws by giving at least 90 days’ advance notice of its intention to withdraw to the Limited
Partners, such withdrawal to take effect on the date



86









 







specified in the notice, if at the time such notice is given one Person and its Affiliates
(other than the General Partner and its Affiliates) own beneficially or of record or control at
least 50% of the Outstanding Units. The withdrawal of the General Partner from the Partnership
upon the occurrence of an Event of Withdrawal shall also constitute the withdrawal of the General
Partner as general partner or managing member, if any, to the extent applicable, of the other Group
Members. If the General Partner gives a notice of withdrawal pursuant to Section
11.1(a)(i), the holders of a Unit Majority, may, prior to the effective date of such
withdrawal, elect a successor General Partner. The Person so elected as successor General Partner
shall automatically become the successor general partner or managing member, to the extent
applicable, of the other Group Members of which the General Partner is a general partner or a
managing member. If, prior to the effective date of the General Partner’s withdrawal, a successor
is not selected by the Unitholders as provided herein or the Partnership does not receive a
Withdrawal Opinion of Counsel, the Partnership shall be dissolved in accordance with Section
12.1. Any successor General Partner elected in accordance with the terms of this Section
11.1 shall be subject to the provisions of Section 10.3.



     Section 11.2 Removal of the General Partner. The General Partner may be removed if such
removal is approved by the Unitholders holding at least 66 2/3% of the Outstanding Units (including
Units held by the General Partner and its Affiliates) voting as a single class. Any such action by
such holders for removal of the General Partner must also provide for the election of a successor
General Partner by the Unitholders holding a majority of the Outstanding Common Units and Class C
Units, if any, voting as a single class, and a majority of the Outstanding Subordinated Units
voting as a single class (including, in each case, Units held by the General Partner and its
Affiliates). Such removal shall be effective immediately following the admission of a successor
General Partner pursuant to Section 10.3. The removal of the General Partner shall also
automatically constitute the removal of the General Partner as general partner or managing member,
to the extent applicable, of the other Group Members of which the General Partner is a general
partner or a managing member. If a Person is elected as a successor General Partner in accordance
with the terms of this Section 11.2, such Person shall, upon admission pursuant to
Section 10.3, automatically become a successor general partner or managing member, to the
extent applicable, of the other Group Members of which the General Partner is a general partner or
a managing member. The right of the holders of Outstanding Units to remove the General Partner
shall not exist or be exercised unless the Partnership has received an opinion of counsel opining
as to the matters covered by a Withdrawal Opinion of Counsel. Any successor General Partner elected
in accordance with the terms of this Section 11.2 shall be subject to the provisions of
Section 10.3.



     Section 11.3 Interest of Departing General Partner and Successor General Partner.



     (a) In the event of (i) withdrawal of the General Partner under circumstances where such
withdrawal does not violate this Agreement or (ii) removal of the General Partner by the holders of
Outstanding Units under circumstances where Cause does not exist, if the successor General Partner
is elected in accordance with the terms of Section 11.1 or Section 11.2, the
Departing General Partner shall have the option, exercisable prior to the effective date of the
departure of such Departing General Partner, to require its successor to purchase its General
Partner Interest and its general partner interest (or equivalent interest), if any, in the other
Group Members and all of its Incentive Distribution Rights (collectively, the “Combined Interest”)
in



87









 







exchange for an amount in cash equal to the fair market value of such Combined Interest, such
amount to be determined and payable as of the effective date of its departure. If the General
Partner is removed by the Unitholders under circumstances where Cause exists or if the General
Partner withdraws under circumstances where such withdrawal violates this Agreement, and if a
successor General Partner is elected in accordance with the terms of Section 11.1 or
Section 11.2 (or if the business of the Partnership is continued pursuant to Section
12.2 and the successor General Partner is not the former General Partner), such successor shall
have the option, exercisable prior to the effective date of the departure of such Departing General
Partner (or, in the event the business of the Partnership is continued, prior to the date the
business of the Partnership is continued), to purchase the Combined Interest for such fair market
value of such Combined Interest of the Departing General Partner. In either event, the Departing
General Partner shall be entitled to receive all reimbursements due such Departing General Partner
pursuant to Section 7.4, including any employee-related liabilities (including severance
liabilities), incurred in connection with the termination of any employees employed by the
Departing General Partner or its Affiliates (other than any Group Member) for the benefit of the
Partnership or the other Group Members.



     For purposes of this Section 11.3(a), the fair market value of the Departing General
Partner’s Combined Interest shall be determined by agreement between the Departing General Partner
and its successor or, failing agreement within 30 days after the effective date of such Departing
General Partner’s departure, by an independent investment banking firm or other independent expert
selected by the Departing General Partner and its successor, which, in turn, may rely on other
experts, and the determination of which shall be conclusive as to such matter. If such parties
cannot agree upon one independent investment banking firm or other independent expert within 45
days after the effective date of such departure, then the Departing General Partner shall designate
an independent investment banking firm or other independent expert, the Departing General Partner’s
successor shall designate an independent investment banking firm or other independent expert, and
such firms or experts shall mutually select a third independent investment banking firm or
independent expert, which third independent investment banking firm or other independent expert
shall determine the fair market value of the Combined Interest of the Departing General Partner. In
making its determination, such third independent investment banking firm or other independent
expert may consider the then current trading price of Units on any National Securities Exchange on
which Units are then listed or admitted to trading, the value of the Partnership’s assets, the
rights and obligations of the Departing General Partner and other factors it may deem relevant.



     (b) If the Combined Interest is not purchased in the manner set forth in Section
11.3(a), the Departing General Partner (or its transferee) shall become a Limited Partner and
its Combined Interest shall be converted into Common Units pursuant to a valuation made by an
investment banking firm or other independent expert selected pursuant to Section 11.3(a),
without reduction in such Partnership Interest (but subject to proportionate dilution by reason of
the admission of its successor). Any successor General Partner shall indemnify the Departing
General Partner (or its transferee) as to all debts and liabilities of the Partnership arising on
or after the date on which the Departing General Partner (or its transferee) becomes a Limited
Partner. For purposes of this Agreement, conversion of the Combined Interest of the Departing
General Partner to Common Units will be characterized as if the Departing General Partner (or



88









 







its transferee) contributed its Combined Interest to the Partnership in exchange for the newly
issued Common Units.



     (c) If a successor General Partner is elected in accordance with the terms of Section
11.1 or Section 11.2 (or if the business of the Partnership is continued pursuant to
Section 12.2 and the successor General Partner is not the former General Partner) and the
option described in Section 11.3(a) is not exercised by the party entitled to do so, the
successor General Partner shall, at the effective date of its admission to the Partnership,
contribute to the Partnership cash in the amount equal to the product of the Percentage Interest of
the Departing General Partner and the Net Agreed Value of the Partnership’s assets on such date. In
such event, such successor General Partner shall, subject to the following sentence, be entitled to
its Percentage Interest of all Partnership allocations and distributions to which the Departing
General Partner was entitled. In addition, the successor General Partner shall cause this Agreement
to be amended to reflect that, from and after the date of such successor General Partner’s
admission, the successor General Partner’s interest in all Partnership distributions and
allocations shall be its Percentage Interest.



     Section 11.4 Termination of Subordination Period, Conversion of Subordinated Units and
Extinguishment of Cumulative Common Unit Arrearages. Notwithstanding any provision of this
Agreement, if the General Partner is removed as general partner of the Partnership under
circumstances where Cause does not exist and Units held by the General Partner and its Affiliates
are not voted in favor of such removal, (i) the Subordination Period will end and all Outstanding
Subordinated Units will immediately and automatically convert into Common Units on a one-for-one
basis, (ii) all Cumulative Common Unit Arrearages on the Common Units will be extinguished and
(iii) the General Partner will have the right to convert its General Partner Interest (represented
by General Partner Units) and its Incentive Distribution Rights into Common Units or to receive
cash in exchange therefor in accordance with Section 11.3.



     Section 11.5 Withdrawal of Limited Partners. No Limited Partner shall have any right to
withdraw from the Partnership; provided, however, that when a transferee of a Limited Partner’s
Limited Partner Interest becomes a Record Holder of the Limited Partner Interest so transferred,
such transferring Limited Partner shall cease to be a Limited Partner with respect to the Limited
Partner Interest so transferred.



ARTICLE XII.




Dissolution and Liquidation




     Section 12.1 Dissolution. The Partnership shall not be dissolved by the admission of
additional Limited Partners or by the admission of a successor General Partner in accordance with
the terms of this Agreement. Upon the removal or withdrawal of the General Partner, if a successor
General Partner is elected pursuant to Section 11.1 or Section 11.2, the
Partnership shall not be dissolved and such successor General Partner shall continue the business
of the Partnership. The Partnership shall dissolve, and (subject to Section 12.2) its
affairs shall be wound up, upon:



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     (a) an Event of Withdrawal of the General Partner as provided in Section 11.1(a)
(other than Section 11.1(a)(ii)), unless a successor is elected and an Opinion of Counsel
is received as provided in Section 11.1(b) or Section 11.2 and such successor is
admitted to the Partnership pursuant to Section 10.3;



     (b) an election to dissolve the Partnership by the General Partner that is approved by the
holders of a Unit Majority;



     (c) the entry of a decree of judicial dissolution of the Partnership pursuant to the
provisions of the Delaware Act; or



     (d) at any time there are no Limited Partners, unless the Partnership is continued without
dissolution in accordance with the Delaware Act.



     Section 12.2 Continuation of the Business of the Partnership After Dissolution. Upon (a)
dissolution of the Partnership following an Event of Withdrawal caused by the withdrawal or removal
of the General Partner as provided in Section 11.1(a)(i) or Section 11.1(a)(iii)
and the failure of the Partners to select a successor to such Departing General Partner pursuant to
Section 11.1 or Section 11.2, then within 90 days thereafter, or (b) dissolution of
the Partnership upon an event constituting an Event of Withdrawal as defined in Section
11.1(a)(iv), Section 11.1(a)(v) or Section 11.1(a)(vi), then, to the maximum
extent permitted by law, within 180 days thereafter, the holders of a Unit Majority may elect to
continue the business of the Partnership on the same terms and conditions set forth in this
Agreement by appointing as a successor General Partner a Person approved by the holders of a Unit
Majority. Unless such an election is made within the applicable time period as set forth above, the
Partnership shall conduct only activities necessary to wind up its affairs. If such an election is
so made, then:




     (i) the Partnership shall continue without dissolution unless earlier dissolved in
accordance with this Article XII;




     (ii) if the successor General Partner is not the former General Partner, then the
interest of the former General Partner shall be treated in the manner provided in
Section 11.3; and




     (iii) the successor General Partner shall be admitted to the Partnership as General
Partner, effective as of the Event of Withdrawal, by agreeing in writing to be bound by this
Agreement; provided, that the right of the holders of a Unit Majority to approve a successor
General Partner and to continue the business of the Partnership shall not exist and may not
be exercised unless the Partnership has received an Opinion of Counsel that (x) the exercise
of the right would not result in the loss of limited liability of any Limited Partner and
(y) neither the Partnership nor any Group Member would be treated as an association taxable
as a corporation or otherwise be taxable as an entity for federal income tax purposes upon
the exercise of such right to continue (to the extent not already so treated or taxed).



     Section 12.3 Liquidator. Upon dissolution of the Partnership, unless the business of the
Partnership is continued pursuant to Section 12.2, the General Partner shall select one or
more Persons to act as Liquidator. The Liquidator (if other than the General Partner) shall be
entitled



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to receive such compensation for its services as may be approved by holders of at least a
majority of the Outstanding Common Units and Subordinated Units voting as a single class. The
Liquidator (if other than the General Partner) shall agree not to resign at any time without 15
days’ prior notice and may be removed at any time, with or without cause, by notice of removal
approved by holders of at least a majority of the Outstanding Common Units, Class C Units (if any),
and Subordinated Units voting as a single class. Upon dissolution, removal or resignation of the
Liquidator, a successor and substitute Liquidator (who shall have and succeed to all rights, powers
and duties of the original Liquidator) shall within 30 days thereafter be approved by holders of at
least a majority of the Outstanding Common Units, Class C Units (if any), and Subordinated Units
voting as a single class. The right to approve a successor or substitute Liquidator in the manner
provided herein shall be deemed to refer also to any such successor or substitute Liquidator
approved in the manner herein provided. Except as expressly provided in this Article XII,
the Liquidator approved in the manner provided herein shall have and may exercise, without further
authorization or consent of any of the parties hereto, all of the powers conferred upon the General
Partner under the terms of this Agreement (but subject to all of the applicable limitations,
contractual and otherwise, upon the exercise of such powers, other than the limitation on sale set
forth in Section 7.3) necessary or appropriate to carry out the duties and functions of the
Liquidator hereunder for and during the period of time required to complete the winding up and
liquidation of the Partnership as provided for herein.



     Section 12.4 Liquidation. The Liquidator shall proceed to dispose of the assets of the
Partnership, discharge its liabilities, and otherwise wind up its affairs in such manner and over
such period as determined by the Liquidator, subject to Section 17-804 of the Delaware Act and the
following:



     (a) The assets may be disposed of by public or private sale or by distribution in kind to one
or more Partners on such terms as the Liquidator and such Partner or Partners may agree. If any
property is distributed in kind, the Partner receiving the property shall be deemed for purposes of
Section 12.4(c) to have received cash equal to its fair market value; and contemporaneously
therewith, appropriate cash distributions must be made to the other Partners. The Liquidator may
defer liquidation or distribution of the Partnership’s assets for a reasonable time if it
determines that an immediate sale or distribution of all or some of the Partnership’s assets would
be impractical or would cause undue loss to the Partners. The Liquidator may distribute the
Partnership’s assets, in whole or in part, in kind if it determines that a sale would be
impractical or would cause undue loss to the Partners.



     (b) Liabilities of the Partnership include amounts owed to the Liquidator as compensation for
serving in such capacity (subject to the terms of Section 12.3) and amounts to Partners
otherwise than in respect of their distribution rights under Article VI. With respect to
any liability that is contingent, conditional or unmatured or is otherwise not yet due and payable,
the Liquidator shall either settle such claim for such amount as it thinks appropriate or establish
a reserve of cash or other assets to provide for its payment. When paid, any unused portion of the
reserve shall be distributed as additional liquidation proceeds.



     (c) Except as provided in Section 6.4(c), all property and all cash in excess of that required
to discharge liabilities as provided in Section 12.4(b) shall be distributed to the
Partners in accordance with, and to the extent of, the positive balances in their respective
Capital



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Accounts, as determined after taking into account all Capital Account adjustments (other than
those made by reason of distributions pursuant to this Section 12.4(c)) for the taxable
year of the Partnership during which the liquidation of the Partnership occurs (with such date of
occurrence being determined pursuant to Treasury Regulation Section 1.704-1(b)(2)(ii)(g)), and such
distribution shall be made by the end of such taxable year (or, if later, within 90 days after said
date of such occurrence).



     Section 12.5 Cancellation of Certificate of Limited Partnership. Upon the completion of the
distribution of Partnership cash and property as provided in Section 12.4 in connection
with the liquidation of the Partnership, the Certificate of Limited Partnership and all
qualifications of the Partnership as a foreign limited partnership shall be canceled and such other
actions as may be necessary to terminate the Partnership shall be taken.



     Section 12.6 Return of Contributions. The General Partner shall not be personally liable for,
and shall have no obligation to contribute or loan any monies or property to the Partnership to
enable it to effectuate, the return of the Capital Contributions of the Limited Partners or
Unitholders, or any portion thereof, it being expressly understood that any such return shall be
made solely from Partnership assets.



     Section 12.7 Waiver of Partition. To the maximum extent permitted by law, each Partner hereby
waives any right to partition of the Partnership property.



     Section 12.8 Capital Account Restoration. No Limited Partner shall have any obligation to
restore any negative balance in its Capital Account upon liquidation of the Partnership. The
General Partner shall be obligated to restore any negative balance in its Capital Account upon
liquidation of its interest in the Partnership by the end of the taxable year of the Partnership
during which such liquidation occurs, or, if later, within 90 days after the date of such
liquidation.



ARTICLE XIII.




Amendment of Partnership Agreement;

Meetings; Record Date




     Section 13.1 Amendments to be Adopted Solely by the General Partner. Each Partner agrees that
the General Partner, without the approval of any Partner, may amend any provision of this Agreement
and execute, swear to, acknowledge, deliver, file and record whatever documents may be required in
connection therewith, to reflect:



     (a) a change in the name of the Partnership, the location of the principal place of business
of the Partnership, the registered agent of the Partnership or the registered office of the
Partnership;



     (b) admission, substitution, withdrawal or removal of Partners in accordance with this
Agreement;



     (c) a change that the General Partner determines to be necessary or appropriate to qualify or
continue the qualification of the Partnership as a limited partnership or a partnership in



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which the Limited Partners have limited liability under the laws of any state or to ensure
that the Group Members will not be treated as associations taxable as corporations or otherwise
taxed as entities for federal income tax purposes;



     (d) a change that the General Partner determines, (i) does not adversely affect the Limited
Partners (including any particular class of Partnership Interests as compared to other classes of
Partnership Interests) in any material respect, (ii) to be necessary or appropriate to (A) satisfy
any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or
regulation of any federal or state agency or judicial authority or contained in any federal or
state statute (including the Delaware Act) or (B) facilitate the trading of the Units (including
the division of any class or classes of Outstanding Units into different classes to facilitate
uniformity of tax consequences within such classes of Units) or comply with any rule, regulation,
guideline or requirement of any National Securities Exchange on which the Units are or will be
listed or admitted to trading, (iii) to be necessary or appropriate in connection with action taken
by the General Partner pursuant to Section 5.10 or (iv) is required to effect the intent
expressed in the Purchase Agreement, the Second Round Purchase Agreement, this Agreement or the
registration statement for the Initial Public Offering or is otherwise contemplated by this
Agreement; provided, however, that with respect to clause (i) above, prior to the Initial Public
Offering, the Investor Representatives must consent to such amendment;



     (e) a change in the fiscal year or taxable year of the Partnership and any other changes that
the General Partner determines to be necessary or appropriate as a result of a change in the fiscal
year or taxable year of the Partnership including, if the General Partner shall so determine, a
change in the definition of “Quarter” and the dates on which distributions are to be made by the
Partnership;



     (f) an amendment that is necessary, in the Opinion of Counsel, to prevent the Partnership, or
the General Partner or its directors, officers, trustees or agents from in any manner being
subjected to the provisions of the Investment Company Act of 1940, as amended, the Investment
Advisers Act of 1940, as amended, or “plan asset” regulations adopted under the Employee Retirement
Income Security Act of 1974, as amended, regardless of whether such are substantially similar to
plan asset regulations currently applied or proposed by the United States Department of Labor;



     (g) an amendment that the General Partner determines to be necessary or appropriate in
connection with the authorization of issuance of any class or series of Partnership Securities
pursuant to Section 5.6, including any amendment that the General Partner determines is
necessary or appropriate in connection with (i) the adjustments of the Minimum Quarterly
Distribution, First Target Distribution, Second Target Distribution and Third Target Distribution
pursuant to the provisions of Section 5.12, (ii) the implementation of the provisions of
Section 5.12 or (iii) any modifications to the Incentive Distribution Rights made in
connection with the issuance of Partnership Securities pursuant to Section 5.6, provided
that, with respect to this clause (iii), the modifications to the Incentive Distribution Rights and
the related issuance of Partnership Securities have received Special Approval;



     (h) any amendment expressly permitted in this Agreement to be made by the General Partner
acting alone;



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     (i) an amendment effected, necessitated or contemplated by a Merger Agreement approved in
accordance with Section 14.3;



     (j) an amendment that the General Partner determines to be necessary or appropriate to reflect
and account for the formation by the Partnership of, or investment by the Partnership in, any
corporation, partnership, joint venture, limited liability company or other entity, in connection
with the conduct by the Partnership of activities permitted by the terms of Section 2.4;



     (k) merger, conveyance or conversion pursuant to Section 14.3(d); or



     (l) any other amendments substantially similar to the foregoing.



     Section 13.2 Amendment Procedures. Except as provided in Section 13.1 and Section
13.3, all amendments to this Agreement shall be made in accordance with the following
requirements. Amendments to this Agreement may be proposed only by the General Partner; provided,
however, that the General Partner shall have no duty or obligation to propose any amendment to this
Agreement and may decline to do so free of any fiduciary duty or obligation whatsoever to the
Partnership or any Limited Partner and, in declining to propose an amendment, to the fullest extent
permitted by law shall not be required to act in good faith or pursuant to any other standard
imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or
under the Delaware Act or any other law, rule or regulation or at equity. A proposed amendment
shall be effective upon its approval by the General Partner and the holders of a Unit Majority,
unless a greater or different percentage is required under this Agreement or by Delaware law. Each
proposed amendment that requires the approval of the holders of a specified percentage of
Outstanding Units shall be set forth in a writing that contains the text of the proposed amendment.
If such an amendment is proposed, the General Partner shall seek the written approval of the
requisite percentage of Outstanding Units or call a meeting of the Unitholders to consider and vote
on such proposed amendment. The General Partner shall notify all Record Holders upon final
adoption of any such proposed amendments.



     Section 13.3 Amendment Requirements.



     (a) Notwithstanding the provisions of Section 13.1 and Section 13.2, no
provision of this Agreement that establishes a percentage of Outstanding Units (including Units
deemed owned by the General Partner) required to take any action shall be amended, altered,
changed, repealed or rescinded in any respect that would have the effect of reducing such voting
percentage unless such amendment is approved by the written consent or the affirmative vote of
holders of Outstanding Units whose aggregate Outstanding Units constitute not less than the voting
requirement sought to be reduced.



     (b) Notwithstanding the provisions of Section 13.1 and Section 13.2, no
amendment to this Agreement may (i) enlarge the obligations of any Limited Partner without its
consent, unless such shall be deemed to have occurred as a result of an amendment approved pursuant
to Section 13.3(c), or (ii) enlarge the obligations of, restrict in any way any action by
or rights of, or reduce in any way the amounts distributable, reimbursable or otherwise payable to,
the General



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Partner or any of its Affiliates without its consent, which consent may be given or withheld
at its option.



     (c) Except as provided in Section 14.3, and without limiting the General Partner’s
authority to adopt amendments to this Agreement without the approval of any Partners or assignees
as contemplated in Section 13.1, any amendment that would have a material adverse effect on
the rights or preferences of any class of Partnership Interests in relation to other classes of
Partnership Interests must be approved by the holders of not less than a majority of the
Outstanding Partnership Interests of the class affected.



     (d) Notwithstanding any other provision of this Agreement, except for amendments pursuant to
Section 13.1 and except as otherwise provided by Section 14.3(b), no amendments
shall become effective without the approval of the holders of at least 90% of the Outstanding Units
voting as a single class unless the Partnership obtains an Opinion of Counsel to the effect that
such amendment will not affect the limited liability of any Limited Partner under applicable
partnership law of the state under whose laws the Partnership is organized.



     (e) Except as provided in Section 13.1, this Section 13.3 shall only be
amended with the approval of the holders of at least 90% of the Outstanding Units.



     Section 13.4 Special Meetings. All acts of Limited Partners to be taken pursuant to this
Agreement shall be taken in the manner provided in this Article XIII. Special meetings of
the Limited Partners may be called by the General Partner or by Limited Partners owning 20% or more
of the Outstanding Units of the class or classes for which a meeting is proposed. Limited Partners
shall call a special meeting by delivering to the General Partner one or more requests in writing
stating that the signing Limited Partners wish to call a special meeting and indicating the general
or specific purposes for which the special meeting is to be called. Within 60 days after receipt of
such a call from Limited Partners or within such greater time as may be reasonably necessary for
the Partnership to comply with any statutes, rules, regulations, listing agreements or similar
requirements governing the holding of a meeting or the solicitation of proxies for use at such a
meeting, the General Partner shall send a notice of the meeting to the Limited Partners either
directly or indirectly through the Transfer Agent. A meeting shall be held at a time and place
determined by the General Partner on a date not less than 10 days nor more than 60 days after the
mailing of notice of the meeting. Limited Partners shall not vote on matters that would cause the
Limited Partners to be deemed to be taking part in the management and control of the business and
affairs of the Partnership so as to jeopardize the Limited Partners’ limited liability under the
Delaware Act or the law of any other state in which the Partnership is qualified to do business.



     Section 13.5 Notice of a Meeting. Notice of a meeting called pursuant to Section 13.4
shall be given to the Record Holders of the class or classes of Units for which a meeting is
proposed in writing by mail or other means of written communication in accordance with Section
16.1. The notice shall be deemed to have been given at the time when deposited in the mail or
sent by other means of written communication.



     Section 13.6 Record Date. For purposes of determining the Limited Partners entitled to notice
of or to vote at a meeting of the Limited Partners or to give approvals without a meeting



95









 







as provided in Section 13.11, the General Partner may set a Record Date, which shall
not be less than 10 nor more than 60 days before (a) the date of the meeting (unless such
requirement conflicts with any rule, regulation, guideline or requirement of any National
Securities Exchange on which the Units are listed or admitted to trading, in which case the rule,
regulation, guideline or requirement of such National Securities Exchange shall govern) or (b) in
the event that approvals are sought without a meeting, the date by which Limited Partners are
requested in writing by the General Partner to give such approvals. If the General Partner does not
set a Record Date, then (a) the Record Date for determining the Limited Partners entitled to notice
of or to vote at a meeting of the Limited Partners shall be the close of business on the day next
preceding the day on which notice is given, and (b) the Record Date for determining the Limited
Partners entitled to give approvals without a meeting shall be the date the first written approval
is deposited with the Partnership in care of the General Partner in accordance with Section
13.11.



     Section 13.7 Adjournment. When a meeting is adjourned to another time or place, notice need
not be given of the adjourned meeting and a new Record Date need not be fixed, if the time and
place thereof are announced at the meeting at which the adjournment is taken, unless such
adjournment shall be for more than 45 days. At the adjourned meeting, the Partnership may transact
any business that might have been transacted at the original meeting. If the adjournment is for
more than 45 days or if a new Record Date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given in accordance with this Article XIII.



     Section 13.8 Waiver of Notice; Approval of Meeting; Approval of Minutes. The transactions of
any meeting of Limited Partners, however called and noticed, and whenever held, shall be as valid
as if it had occurred at a meeting duly held after regular call and notice, if a quorum is present
either in person or by proxy, and if, either before or after the meeting, Limited Partners
representing such quorum who were present in person or by proxy and entitled to vote, sign a
written waiver of notice or an approval of the holding of the meeting or an approval of the minutes
thereof. All waivers and approvals shall be filed with the Partnership records or made a part of
the minutes of the meeting. Attendance of a Limited Partner at a meeting shall constitute a waiver
of notice of the meeting, except when the Limited Partner attends the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened; and except that attendance at a meeting is not a
waiver of any right to disapprove the consideration of matters required to be included in the
notice of the meeting, but not so included, if the disapproval is expressly made at the meeting.



     Section 13.9 Quorum and Voting. The holders of a majority of the Outstanding Units of the
class or classes for which a meeting has been called (including Outstanding Units deemed owned by
the General Partner) represented in person or by proxy shall constitute a quorum at a meeting of
Limited Partners of such class or classes unless any such action by the Limited Partners requires
approval by holders of a greater percentage of such Units, in which case the quorum shall be such
greater percentage. At any meeting of the Limited Partners duly called and held in accordance with
this Agreement at which a quorum is present, the act of Limited Partners holding Outstanding Units
that in the aggregate represent a majority of the Outstanding Units entitled to vote and be present
in person or by proxy at such meeting shall be deemed to constitute the act of all Limited
Partners, unless a greater or different percentage is required with respect to such action under
the provisions of this Agreement, in which case the act of the



96









 







Limited Partners holding Outstanding Units that in the aggregate represent at least such
greater or different percentage shall be required. The Limited Partners present at a duly called
or held meeting at which a quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough Limited Partners to leave less than a quorum, if any
action taken (other than adjournment) is approved by the required percentage of Outstanding Units
specified in this Agreement (including Outstanding Units deemed owned by the General Partner). In
the absence of a quorum any meeting of Limited Partners may be adjourned from time to time by the
affirmative vote of holders of at least a majority of the Outstanding Units entitled to vote at
such meeting (including Outstanding Units deemed owned by the General Partner) represented either
in person or by proxy, but no other business may be transacted, except as provided in Section
13.7.



     Section 13.10 Conduct of a Meeting. The General Partner shall have full power and authority
concerning the manner of conducting any meeting of the Limited Partners or solicitation of
approvals in writing, including the determination of Persons entitled to vote, the existence of a
quorum, the satisfaction of the requirements of Section 13.4, the conduct of voting, the
validity and effect of any proxies and the determination of any controversies, votes or challenges
arising in connection with or during the meeting or voting. The General Partner shall designate a
Person to serve as chairman of any meeting and shall further designate a Person to take the minutes
of any meeting. All minutes shall be kept with the records of the Partnership maintained by the
General Partner. The General Partner may make such other regulations consistent with applicable
law and this Agreement as it may deem advisable concerning the conduct of any meeting of the
Limited Partners or solicitation of approvals in writing, including regulations in regard to the
appointment of proxies, the appointment and duties of inspectors of votes and approvals, the
submission and examination of proxies and other evidence of the right to vote, and the revocation
of approvals in writing.



     Section 13.11 Action Without a Meeting. If authorized by the General Partner, any action that
may be taken at a meeting of the Limited Partners may be taken without a meeting if an approval in
writing setting forth the action so taken is signed by Limited Partners owning not less than the
minimum percentage of the Outstanding Units (including Units deemed owned by the General Partner)
that would be necessary to authorize or take such action at a meeting at which all the Limited
Partners were present and voted (unless such provision conflicts with any rule, regulation,
guideline or requirement of any National Securities Exchange on which the Units are listed or
admitted to trading, in which case the rule, regulation, guideline or requirement of such National
Securities Exchange shall govern). Prompt notice of the taking of action without a meeting shall be
given to the Limited Partners who have not approved such action in writing. The General Partner
may specify that any written ballot submitted to Limited Partners for the purpose of taking any
action without a meeting shall be returned to the Partnership within the time period, which shall
be not less than 20 days, specified by the General Partner. If a ballot returned to the Partnership
does not vote all of the Units held by the Limited Partners, the Partnership shall be deemed to
have failed to receive a ballot for the Units that were not voted. If approval of the taking of any
action by the Limited Partners is solicited by any Person other than by or on behalf of the General
Partner, the written approvals shall have no force and effect unless and until (a) they are
deposited with the Partnership in care of the General Partner, (b) approvals sufficient to take the
action proposed are dated as of a date not more than 90 days prior to the date sufficient approvals
are deposited with the Partnership and (c) an



97









 







Opinion of Counsel is delivered to the General Partner to the effect that the exercise of such
right and the action proposed to be taken with respect to any particular matter (i) will not cause
the Limited Partners to be deemed to be taking part in the management and control of the business
and affairs of the Partnership so as to jeopardize the Limited Partners’ limited liability, and
(ii) is otherwise permissible under the state statutes then governing the rights, duties and
liabilities of the Partnership and the Partners.



     Section 13.12 Right to Vote and Related Matters.



     (a) Only those Record Holders of the Units on the Record Date set pursuant to Section
13.6 (and also subject to the limitations contained in the definition of “Outstanding”) shall
be entitled to notice of, and to vote at, a meeting of Limited Partners or to act with respect to
matters as to which the holders of the Outstanding Units have the right to vote or to act. All
references in this Agreement to votes of, or other acts that may be taken by, the Outstanding Units
shall be deemed to be references to the votes or acts of the Record Holders of such Outstanding
Units.



     (b) With respect to Units that are held for a Person’s account by another Person (such as a
broker, dealer, bank, trust company or clearing corporation, or an agent of any of the foregoing),
in whose name such Units are registered, such other Person shall, in exercising the voting rights
in respect of such Units on any matter, and unless the arrangement between such Persons provides
otherwise, vote such Units in favor of, and at the direction of, the Person who is the beneficial
owner, and the Partnership shall be entitled to assume it is so acting without further inquiry.
The provisions of this Section 13.12(b) (as well as all other provisions of this Agreement)
are subject to the provisions of Section 4.3.



ARTICLE XIV.




Merger, Consolidation or Conversion




     Section 14.1 Authority. The Partnership may merge or consolidate with or into one or more
corporations, limited liability companies, statutory trusts or associations, real estate investment
trusts, common law trusts or unincorporated businesses, including a partnership (whether general or
limited (including a limited liability partnership)) or convert into any such entity, whether such
entity is formed under the laws of the State of Delaware or any other state of the United States of
America, pursuant to a written plan of merger or consolidation (“Merger Agreement”) or a written
plan of conversion (“Plan of Conversion”), as the case may be, in accordance with this Article
XIV.



     Section 14.2 Procedure for Merger, Consolidation or Conversion.



     (a) Except as provided in the Investors’ Rights Agreement, Merger, consolidation or conversion
of the Partnership pursuant to this Article XIV requires the prior consent of the General
Partner, provided, however, that, to the fullest extent permitted by law, the General Partner shall
have no duty or obligation to consent to any merger, consolidation or conversion of the Partnership
and may decline to do so free of any fiduciary duty or obligation whatsoever to the Partnership, or
any Limited Partner and, in declining to consent to a merger, consolidation or



98









 







conversion, shall not be required to act in good faith or pursuant to any other standard
imposed by this Agreement, any other agreement contemplated hereby or under the Delaware Act or any
other law, rule or regulation or at equity.



     (b) If the General Partner shall determine to consent to the merger or consolidation, the
General partner shall approve the Merger Agreement, which shall set forth:




     (i) name and state of domicile of each of the business entities proposing to merge or
consolidate;




     (ii) the name and state of domicile of the business entity that is to survive the
proposed merger or consolidation (the “Surviving Business Entity”);




     (iii) the terms and conditions of the proposed merger or consolidation;




     (iv) the manner and basis of exchanging or converting the equity securities of each
constituent business entity for, or into, cash, property or interests, rights, securities or
obligations of the Surviving Business Entity; and (A) if any general or limited partner
interests, securities or rights of any constituent business entity are not to be exchanged
or converted solely for, or into, cash, property or general or limited partner interests,
rights, securities or obligations of the Surviving Business Entity, the cash, property or
interests, rights, securities or obligations of any general or limited partnership,
corporation, trust, limited liability company, unincorporated business or other entity
(other than the Surviving Business Entity) which the holders of such general or limited
partner interests, securities or rights are to receive in exchange for, or upon conversion
of their interests, securities or rights, and (B) in the case of securities represented by
certificates, upon the surrender of such certificates, which cash, property or general or
limited partner interests, rights, securities or obligations of the Surviving Business
Entity or any general or limited partnership, corporation, trust, limited liability company,
unincorporated business or other entity (other than the Surviving Business Entity), or
evidences thereof, are to be delivered;




     (v) a statement of any changes in the constituent documents or the adoption of new
constituent documents (the articles or certificate of incorporation, articles of trust,
declaration of trust, certificate or agreement of limited partnership, operating agreement
or other similar charter or governing document) of the Surviving Business Entity to be
effected by such merger or consolidation;




     (vi) the effective time of the merger, which may be the date of the filing of the
certificate of merger pursuant to Section 14.4 or a later date specified in or
determinable in accordance with the Merger Agreement (provided, that if the effective time
of the merger is to be later than the date of the filing of such certificate of merger, the
effective time shall be fixed at a date or time certain at or prior to the time of the
filing of such certificate of merger and stated therein); and




     (vii) such other provisions with respect to the proposed merger or consolidation that
the General Partner determines to be necessary or appropriate.



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     (c) If the General Partner shall determine to consent to the conversion, the General Partner
shall approve the Plan of Conversion, which shall set forth:




     (i) the name of the converting entity and the converted entity;




     (ii) a statement that the Partnership is continuing its existence in the organizational
form of the converted entity;




     (iii) a statement as to the type of entity that the converted entity is to be and the
state or country under the laws of which the converted entity is to be incorporated, formed
or organized;




     (iv) the manner and basis of exchanging or converting the equity securities of each
constituent business entity for, or into, cash, property or interests, rights, securities or
obligations of the converted entity;




     (v) in an attachment or exhibit, the certificate of limited partnership of the
Partnership; and




     (vi) in an attachment or exhibit, the certificate of limited partnership, articles of
incorporation, or other organizational documents of the converted entity;




     (vii) the effective time of the conversion, which may be the date of the filing of the
articles of conversion or a later date specified in or determinable in accordance with the
Plan of Conversion (provided, that if the effective time of the conversion is to be later
than the date of the filing of such articles of conversion, the effective time shall be
fixed at a date or time certain at or prior to the time of the filing of such articles of
conversion and stated therein); and




     (viii) such other provisions with respect to the proposed conversion that the General
Partner determines to be necessary or appropriate.



     Section 14.3 Approval by Limited Partners.



     (a) Except as provided in Section 14.3(d), the General Partner, upon its approval of
the Merger Agreement or the Plan of Conversion, as the case may be, shall direct that the Merger
Agreement or the Plan of Conversion, as applicable, be submitted to a vote of Limited Partners,
whether at a special meeting or by written consent, in either case in accordance with the
requirements of Article XIII. A copy or a summary of the Merger Agreement or the Plan of
Conversion, as the case may be, shall be included in or enclosed with the notice of a special
meeting or the written consent.



     (b) Except as provided in Section 14.3(d), the Merger Agreement or Plan of Conversion,
as the case may be, shall be approved upon receiving the affirmative vote or consent of the holders
of a Unit Majority.



     (c) Except as provided in Section 14.3(d), after such approval by vote or consent of
the Limited Partners, and at any time prior to the filing of the certificate of merger or articles
of



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conversion pursuant to Section 14.4, the merger, consolidation or conversion may be
abandoned pursuant to provisions therefor, if any, set forth in the Merger Agreement or Plan of
Conversion, as the case may be.



     (d) Notwithstanding anything else contained in this Article XIV or in this Agreement,
the General Partner is permitted, without Limited Partner approval, to convert the Partnership or
any Group Member into a new limited liability entity, to merge the Partnership or any Group Member
into, or convey all of the Partnership’s assets to, another limited liability entity that shall be
newly formed and shall have no assets, liabilities or operations at the time of such conversion,
merger or conveyance other than those it receives from the Partnership or other Group Member if (i)
the General Partner has received an Opinion of Counsel that the conversion, merger or conveyance,
as the case may be, would not result in the loss of the limited liability of any Limited Partner or
cause the Partnership to be treated as an association taxable as a corporation or otherwise to be
taxed as an entity for federal income tax purposes (to the extent not previously treated or taxed
as such), (ii) the sole purpose of such conversion, merger, or conveyance is to effect a mere
change in the legal form of the Partnership into another limited liability entity and (iii) the
governing instruments of the new entity provide the Limited Partners and the General Partner with
the same rights and obligations as are herein contained, except for any changes which the General
Partner would be permitted to make pursuant to Section 13.1.



     (e) Additionally, notwithstanding anything else contained in this Article XIV or in
this Agreement and subject to the Investors’ Rights Agreement, the General Partner is permitted,
without Limited Partner approval, to merge or consolidate the Partnership with or into another
entity if (A) the General Partner has received an Opinion of Counsel that the merger or
consolidation, as the case may be, would not result in the loss of the limited liability of any
Limited Partner or cause the Partnership to be treated as an association taxable as a corporation
or otherwise to be taxed as an entity for federal income tax purposes (to the extent not previously
treated or taxed as such), (B) the merger or consolidation would not result in an amendment to the
Partnership Agreement, other than any amendments that could be adopted pursuant to Section
13.1, (C) the Partnership is the Surviving Business Entity in such merger or consolidation, (D)
each Unit outstanding immediately prior to the effective date of the merger or consolidation is to
be an identical Unit of the Partnership after the effective date of the merger or consolidation,
and (E) the number of Partnership Securities to be issued by the Partnership in such merger or
consolidation does not exceed 20% of the Partnership Securities Outstanding immediately prior to
the effective date of such merger or consolidation.



     (f) Pursuant to Section 17-211(g) of the Delaware Act, an agreement of merger or consolidation
approved in accordance with this Article XIV may (a) effect any amendment to this Agreement
or (b) effect the adoption of a new partnership agreement for the Partnership if it is the
Surviving Business Entity. Any such amendment or adoption made pursuant to this Section
14.3 shall be effective at the effective time or date of the merger or consolidation.



     Section 14.4 Certificate of Merger. Upon the required approval by the General Partner and the
Unitholders of a Merger Agreement or Plan of Conversion, as the case may be, a certificate of
merger or articles of conversion, as applicable, shall be executed and filed with the Secretary of
State of the State of Delaware in conformity with the requirements of the Delaware Act.



101









 





     Section 14.5 Effect of Merger, Consolidation or Conversion.



     (a) At the effective time of the certificate of merger:




     (i) all of the rights, privileges and powers of each of the business entities that has
merged or consolidated, and all property, real, personal and mixed, and all debts due to any
of those business entities and all other things and causes of action belonging to each of
those business entities, shall be vested in the Surviving Business Entity and after the
merger or consolidation shall be the property of the Surviving Business Entity to the extent
they were of each constituent business entity;




     (ii) the title to any real property vested by deed or otherwise in any of those
constituent business entities shall not revert and is not in any way impaired because of the
merger or consolidation;




     (iii) all rights of creditors and all liens on or security interests in property of any
of those constituent business entities shall be preserved unimpaired; and




     (iv) all debts, liabilities and duties of those constituent business entities shall
attach to the Surviving Business Entity and may be enforced against it to the same extent as
if the debts, liabilities and duties had been incurred or contracted by it.



     (b) At the effective time of the articles of conversion:




     (i) the Partnership shall continue to exist, without interruption, but in the
organizational form of the converted entity rather than in its prior organizational form;




     (ii) all rights, title, and interests to all real estate and other property owned by
the Partnership shall continue to be owned by the converted entity in its new organizational
form without reversion or impairment, without further act or deed, and without any transfer
or assignment having occurred, but subject to any existing liens or other encumbrances
thereon;




     (iii) all liabilities and obligations of the Partnership shall continue to be
liabilities and obligations of the converted entity in its new organizational form without
impairment or diminution by reason of the conversion;




     (iv) all rights of creditors or other parties with respect to or against the prior
interest holders or other owners of the Partnership in their capacities as such in existence
as of the effective time of the conversion will continue in existence as to those
liabilities and obligations and may be pursued by such creditors and obligees as if the
conversion did not occur;




     (v) a proceeding pending by or against the Partnership or by or against any of Partners
in their capacities as such may be continued by or against the converted entity in its new
organizational form and by or against the prior partners without any need for substitution
of parties; and



102









 






     (vi) the Partnership Units that are to be converted into partnership interests, shares,
evidences of ownership, or other securities in the converted entity as provided in the Plan
of Conversion shall be so converted, and Partners shall be entitled only to the rights
provided in the Plan of Conversion.



ARTICLE XV.




Right to Acquire Limited Partner Interests




     Section 15.1 Right to Acquire Limited Partner Interests.



     (a) Notwithstanding any other provision of this Agreement, if at any time the General Partner
and its Affiliates hold more than 80% of the total Limited Partner Interests of any class then
Outstanding, the General Partner shall then have the right, which right it may assign and transfer
in whole or in part to the Partnership or any Affiliate of the General Partner, exercisable at its
option, to purchase all, but not less than all, of such Limited Partner Interests of such class
then Outstanding held by Persons other than the General Partner and its Affiliates, at the greater
of (x) the Current Market Price as of the date three days prior to the date that the notice
described in Section 15.1(b) is mailed and (y) the highest price paid by the General
Partner or any of its Affiliates for any such Limited Partner Interest of such class purchased
during the 90-day period preceding the date that the notice described in Section 15.1(b) is
mailed. As used in this Agreement, (i) “Current Market Price” as of any date of any class of
Limited Partner Interests means the average of the daily Closing Prices (as hereinafter defined)
per Limited Partner Interest of such class for the 20 consecutive Trading Days (as hereinafter
defined) immediately prior to such date; (ii) “Closing Price” for any day means the last sale price
on such day, regular way, or in case no such sale takes place on such day, the average of the
closing bid and asked prices on such day, regular way, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal National Securities
Exchange on which such Limited Partner Interests are listed or admitted to trading or, if such
Limited Partner Interests of such class are not listed or admitted to trading on any National
Securities Exchange, the last quoted price on such day or, if not so quoted, the average of the
high bid and low asked prices on such day in the over-the-counter market, as reported by the Nasdaq
Stock Market or such other system then in use, or, if on any such day such Limited Partner
Interests of such class are not quoted by any such organization, the average of the closing bid and
asked prices on such day as furnished by a professional market maker making a market in such
Limited Partner Interests of such class selected by the General Partner, or if on any such day no
market maker is making a market in such Limited Partner Interests of such class, the fair value of
such Limited Interests on such day as determined by the General Partner; and (iii) “Trading Day”
means a day on which the principal National Securities Exchange on which such Limited Partner
Interests of any class are listed or admitted for trading is open for the transaction of business
or, if Limited Partner Interests of a class are not listed or admitted for trading on any National
Securities Exchange, a day on which banking institutions in the City of New York, New York,
generally are open.



     (b) If the General Partner, any Affiliate of the General Partner or the Partnership elects to
exercise the right to purchase Limited Partner Interests granted pursuant to Section
15.1(a), the General Partner shall deliver to the Transfer Agent notice of such election to



103









 







purchase (the “Notice of Election to Purchase”) and shall cause the Transfer Agent to mail a
copy of such Notice of Election to Purchase to the Record Holders of Limited Partner Interests of
such class (as of a Record Date selected by the General Partner) at least 10, but not more than 60,
days prior to the Purchase Date. Such Notice of Election to Purchase shall also be published for a
period of at least three consecutive days in at least two daily newspapers of general circulation
printed in the English language and published in the Borough of Manhattan, New York. The Notice of
Election to Purchase shall specify the Purchase Date and the price (determined in accordance with
Section 15.1(a)) at which Limited Partner Interests will be purchased and state that the
General Partner, its Affiliate or the Partnership, as the case may be, elects to purchase such
Limited Partner Interests, upon surrender of Certificates representing such Limited Partner
Interests in exchange for payment, at such office or offices of the Transfer Agent as the Transfer
Agent may specify, or as may be required by any National Securities Exchange on which such Limited
Partner Interests are listed. Any such Notice of Election to Purchase mailed to a Record Holder of
Limited Partner Interests at his address as reflected in the records of the Transfer Agent shall be
conclusively presumed to have been given regardless of whether the owner receives such notice. On
or prior to the Purchase Date, the General Partner, its Affiliate or the Partnership, as the case
may be, shall deposit with the Transfer Agent cash in an amount sufficient to pay the aggregate
purchase price of all of such Limited Partner Interests to be purchased in accordance with this
Section 15.1. If the Notice of Election to Purchase shall have been duly given as aforesaid
at least 10 days prior to the Purchase Date, and if on or prior to the Purchase Date the deposit
described in the preceding sentence has been made for the benefit of the holders of Limited Partner
Interests subject to purchase as provided herein, then from and after the Purchase Date,
notwithstanding that any Certificate shall not have been surrendered for purchase, all rights of
the holders of such Limited Partner Interests (including any rights pursuant to Article IV,
Article V, Article VI, and Article XII) shall thereupon cease, except the
right to receive the purchase price (determined in accordance with Section 15.1(a)) for
Limited Partner Interests therefor, without interest, upon surrender to the Transfer Agent of the
Certificates representing such Limited Partner Interests, and such Limited Partner Interests shall
thereupon be deemed to be transferred to the General Partner, its Affiliate or the Partnership, as
the case may be, on the record books of the Transfer Agent and the Partnership, and the General
Partner or any Affiliate of the General Partner, or the Partnership, as the case may be, shall be
deemed to be the owner of all such Limited Partner Interests from and after the Purchase Date and
shall have all rights as the owner of such Limited Partner Interests (including all rights as owner
of such Limited Partner Interests pursuant to Article IV, Article V, Article
VI and Article XII).



     (c) At any time from and after the Purchase Date, a holder of an Outstanding Limited Partner
Interest subject to purchase as provided in this Section 15.1 may surrender his Certificate
evidencing such Limited Partner Interest to the Transfer Agent in exchange for payment of the
amount described in Section 15.1(a) therefor, without interest thereon.



ARTICLE XVI.




General Provisions




     Section 16.1 Addresses and Notices. Any notice, demand, request, report or proxy materials
required or permitted to be given or made to a Partner under this Agreement shall be in writing and
shall be deemed given or made when delivered in person or when sent by first class



104









 





United States mail or by other means of written communication to the Partner at the address
described below. Any notice, payment or report to be given or made to a Partner hereunder shall be
deemed conclusively to have been given or made, and the obligation to give such notice or report or
to make such payment shall be deemed conclusively to have been fully satisfied, upon sending of
such notice, payment or report to the Record Holder of such Partnership Securities at his address
as shown on the records of the Transfer Agent or as otherwise shown on the records of the
Partnership, regardless of any claim of any Person who may have an interest in such Partnership
Securities by reason of any assignment or otherwise. An affidavit or certificate of making of any
notice, payment or report in accordance with the provisions of this Section 16.1 executed
by the General Partner, the Transfer Agent or the mailing organization shall be prima facie
evidence of the giving or making of such notice, payment or report. If any notice, payment or
report addressed to a Record Holder at the address of such Record Holder appearing on the books and
records of the Transfer Agent or the Partnership is returned by the United States Postal Service
marked to indicate that the United States Postal Service is unable to deliver it, such notice,
payment or report and any subsequent notices, payments and reports shall be deemed to have been
duly given or made without further mailing (until such time as such Record Holder or another Person
notifies the Transfer Agent or the Partnership of a change in his address) if they are available
for the Partner at the principal office of the Partnership for a period of one year from the date
of the giving or making of such notice, payment or report to the other Partners. Any notice to the
Partnership shall be deemed given if received by the General Partner at the principal office of the
Partnership designated pursuant to Section 2.3. The General Partner may rely and shall be
protected in relying on any notice or other document from a Partner or other Person if believed by
it to be genuine.



     Section 16.2 Further Action. The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or appropriate to achieve
the purposes of this Agreement.



     Section 16.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their heirs, executors, administrators, successors, legal representatives
and permitted assigns.



     Section 16.4 Integration. This Agreement constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersedes all prior agreements and
understandings pertaining thereto.



     Section 16.5 Creditors. None of the provisions of this Agreement shall be for the benefit of,
or shall be enforceable by, any creditor of the Partnership.



     Section 16.6 Waiver. No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy
consequent upon a breach thereof shall constitute waiver of any such breach of any other covenant,
duty, agreement or condition.



     Section 16.7 Third-Party Beneficiaries. Each Partner agrees that any Indemnitee shall be
entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect
to those provisions of this Agreement affording a right, benefit or privilege to such Indemnitee.



105









 





     Section 16.8 Counterparts. This Agreement may be executed in counterparts, all of which
together shall constitute an agreement binding on all the parties hereto, notwithstanding that all
such parties are not signatories to the original or the same counterpart. Each party shall become
bound by this Agreement immediately upon affixing its signature hereto or, in the case of a Person
acquiring a Limited Partner Interest, pursuant to Section 10.2(a) without execution hereto.



     Section 16.9 Applicable Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware, without regard to the principles of conflicts of
law.



     Section 16.10 Invalidity of Provisions. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.



     Section 16.11 Consent of Partners. Each Partner hereby expressly consents and agrees that,
whenever in this Agreement it is specified that an action may be taken upon the affirmative vote or
consent of less than all of the Partners, such action may be so taken upon the concurrence of less
than all of the Partners and each Partner shall be bound by the results of such action.



     Section 16.12 Facsimile Signatures. The use of facsimile signatures affixed in the name and
on behalf of the transfer agent and registrar of the Partnership on certificates representing
Common Units is expressly permitted by this Agreement.



Remainder of Page Intentionally Left Blank.

Signature Page Follows.




106









 








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



	 	 	 	 	 	 	 	 	 
	 	 	GENERAL PARTNER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	QUEST MIDSTREAM GP, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Jerry D. Cash
	 

	 	 	 	Name:
	 	 

Jerry D. Cash
	 	 
	 

	 	 	 	Title:
	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LIMITED PARTNERS:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ALERIAN OPPORTUNITY PARTNERS IV, LP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	ALERIAN OPPORTUNITY

ADVISORS IV, LLC,

its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Gabriel Hammond
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Gabriel Hammond	 	 
	 

	 	 	 	Title:
	 	Managing Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Address for Notice:


Alerian Capital Management

45 Rockefeller Plaza, 20th Floor

New York, NY 10111

Attention: Gabriel Hammond	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ALERIAN OPPORTUNITY PARTNERS IX, LP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	ALERIAN OPPORTUNITY

ADVISORS IX, LLC

its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Gabriel Hammond
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Gabriel Hammond	 	 
	 

	 	 	 	Title:
	 	Managing Member	 	 






107









 





	 	 	 	 	 	 	 
	 	 	Address for Notice:


Alerian Capital Management

45 Rockefeller Plaza, 20th Floor

New York, NY 10111

Attention: Gabriel Hammond

Fax: (212) 332-7806
	 
	 	 	 	 	 	 
	 	 	SWANK MLP CONVERGENCE FUND, LP
	 
	 	 	 	 	 	 
	 

	 	By:
	 	SWANK ENERGY INCOME ADVISORS, L.P.

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	SWANK CAPITAL, LLC

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jerry V. Swank
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Jerry V. Swank	 	 
	 

	 	Title
	 	Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


Swank Capital, LLC

Oak Lawn Avenue, Suite 650

Dallas, TX 75219
	 
	 	 	 	 	 	 
	 	 	SWANK INVESTMENT PARTNERS, LP
	 
	 	 	 	 	 	 
	 

	 	By:
	 	SWANK ENERGY INCOME ADVISORS, L.P.

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	SWANK CAPITAL, LLC

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jerry V. Swank
	 

	 	Name:
	 	 

Jerry V. Swank
	 	 
	 

	 	Title:
	 	Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


Swank Capital, LLC

Oak Lawn Avenue, Suite 650

Dallas, TX 75219






108









 






	 	 	 	 	 	 	 
	 	 	THE CUSHING MLP OPPORTUNITY FUND I, LP
	 
	 	 	 	 	 	 
	 

	 	By:
	 	CARBON COUNTY PARTNERS I, LP

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	CARBON COUNTY GP I, LLC

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jerry V. Swank
	 

	 	Name:
	 	 

Jerry V. Swank
	 	 
	 

	 	Title:
	 	Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


Swank Capital, LLC

Oak Lawn Avenue, Suite 650

Dallas, TX 75219
	 
	 	 	 	 	 	 
	 	 	THE CUSHING CP STRATEGIES FUND, LP
	 
	 	 	 	 	 	 
	 

	 	By:
	 	CARBON COUNTY PARTNERS I, LP

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	CARBON COUNTY GP I, LLC

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jerry V. Swank
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Jerry V. Swank	 	 
	 

	 	Title:
	 	Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


Swank Capital, LLC

Oak Lawn Avenue, Suite 650

Dallas, TX 75219






109









 






	 	 	 	 	 	 	 
	 	 	BEL AIR MLP ENERGY INFRASTRUCTURE FUND, LP
	 
	 	 	 	 	 	 
	 

	 	By:
	 	SWANK ENERGY INCOME ADVISORS, L.P.

its investment advisor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	SWANK CAPITAL, LLC

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jerry V. Swank
	 

	 	Name:
	 	 

Jerry V. Swank
	 	 
	 

	 	Title:
	 	Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


Swank Capital, LLC

Oak Lawn Avenue, Suite 650

Dallas, TX 75219

Fax: (214) 219-2353
	 
	 	 	 	 	 	 
	 	 	TORTOISE CAPITAL RESOURCES CORPORATION
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Edward Russell
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Edward Russell	 	 
	 

	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


Tortoise Capital Resources Corporation

10801 Mastin Blvd., Suite 222

Overland Park, KS 66210

Fax: (913) 981-1021
	 
	 	 	 	 	 	 
	 	 	TORTOISE GAS AND OIL CORPORATION
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ David J. Schulte
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	David J. Schulte	 	 
	 

	 	Title:
	 	 President & CEO	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


Tortoise Gas and Oil Corporation

10801 Mastin Blvd., Suite 222






110









 





	 	 	 	 	 	 	 
	 	 	Overland Park, KS 66210

Fax: (913) 981-1021
	 
	 	 	 	 	 	 
	 	 	DALEA PARTNERS, LP
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DALEA MANAGEMENT, LLC

Its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ N. Malone Mitchell, 3rd
	 

	 	Name:
	 	 

N. Malone Mitchell, 3rd
	 	 
	 

	 	Title:
	 	Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


c/o Riata Management LLC

4801 Gaillardia Parkway, Suite 225

Oklahoma City, OK 73142

Fax: (405) 286-6399
	 
	 	 	 	 	 	 
	 	 	HARTZ CAPITAL MLP, LLC
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Hartz Capital, Inc.,

Its manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Ronald J. Bangs
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Ronald J. Bangs	 	 
	 

	 	Title:
	 	Chief Operating Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


c/o Hartz Capital, Inc.

400 Plaza Drive

Seacaucus, New Jersey 07094


Attention: Noah Lerner and Tim Terry

Fax: (201) 866-6387






111









 







	 	 	 	 	 	 	 
	 	 	ZLP FUND, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Zimmer Lucas Partners, LLC,

Its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Craig M. Lucas
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Craig M. Lucas	 	 
	 

	 	Title:
	 	Managing Member	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


c/o Zimmer Lucas Partners, LLC.

Harborside Financial Center

Plaza 10, Suite 301

Jersey City, NJ 07311

Fax: (212) 440-0750
	 
	 	 	 	 	 	 
	 	 	KED MME INVESTMENT PARTNERS, LP
	 
	 	 	 	 	 	 
	 

	 	By:
	 	KED MME Investment GP, LLC,

Its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ James C. Baker
	 

	 	Name:
	 	 

James C. Baker
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


1800 Avenue of the Stars, Second Floor

Los Angeles, California 90067

Attention: David Shladovsky, Esq.

Facsimile: (310) 284-6490


with a copy to:


KED MME Investment Partners, LP

1100 Louisiana, Suite 4550

Houston, Texas 77002

Attention: Kevin McCarthy

Facsimile: (713) 655-7359






112









 






	 	 	 	 	 	 	 
	 	 	EAGLE INCOME APPRECIATION PARTNERS, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Eagle Income Appreciation GP, LLC

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Eagle Global Advisors, LLC

its managing member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Malcom Day
	 

	 	Name:
	 	 

Malcom Day
	 	 
	 

	 	Title:
	 	 Partner	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


c/o Eagle Global Advisors

5847 San Felipe Road, Suite 930

Houston, TX 77057
	 
	 	 	 	 	 	 
	 	 	EAGLE INCOME APPRECIATION II, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Eagle Income Appreciation GP, LLC

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Eagle Global Advisors, LLC

its managing member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Malcom Day
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Malcom Day	 	 
	 

	 	Title:
	 	Partner	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


c/o Eagle Global Advisors

5847 San Felipe Road, Suite 930

Houston, TX 77057






113









 






	 	 	 	 	 	 	 
	 	 	CITIGROUP FINANCIAL PRODUCTS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Bret Engelkemier
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bret Engelkemier	 	 
	 

	 	Title:	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


Citigroup Financial Products, Inc.

390 Greenwich St.

New York, NY 10013

Attn: Brendan O’Dea

Fax: (646) 291-1445


THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jerome R.  Baier
	 

	 	Name:	 	 
Jerome R.  Baier
	 	 
	 

	 	Title:
	 	Its Authorized Representative	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:


The Northwestern Mutual Life Insurance Company

720 East Wisconsin Avenue

Milwaukee, WI 53202

Attention: Jerome Baier

Fax: (414) 665-7124
	 
	 	 	 	 	 	 
	 	 	QUEST RESOURCE CORPORATION
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jerry D. Cash
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Jerry D. Cash	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 






114









 






INITIAL PRIVATE INVESTORS: LIMITED PARTNERS:




     All Limited Partners now and hereafter admitted as Limited Partners of the Partnership,
pursuant to powers of attorney now and hereafter executed in favor of, and granted and delivered to
the General Partner or without execution hereof pursuant to Section 10.2(a).



	 	 	 	 	 	 	 
	 	 	QUEST MIDSTREAM GP, LLC
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jerry D. Cash
	 

	 	 	 	 

Jerry D. Cash
	 	 
	 

	 	 	 	Chief Executive Officer	 	 







115












 





SCHEDULE A

to the

Second Amended and Restated

Agreement of Limited Partnership

of

Quest Midstream Partners, L.P.




LIMITED PARTNERS:




Alerian Opportunity Partners IV, L.P., a Delaware limited partnership




Alerian Opportunity Partners IX, L.P., a Delaware limited partnership




Swank MLP Convergence Fund, LP, a Texas limited partnership




Swank Investment Partners, LP, a Texas limited partnership




The Cushing MLP Opportunity Fund I, LP, a Delaware limited partnership




The Cushing GP Strategies Fund, LP, a Delaware limited partnership




Bel Air MLP Energy Infrastructure Fund, LP




Tortoise Capital Resources Corporation, a Maryland corporation




Tortoise Gas and Oil Corporation, a Maryland corporation




Huizenga Opportunity Partners, LP, a Delaware limited partnership




HCM Energy Holdings, LLC, an Illinois limited liability company




Dalea Partners, LP, an Oklahoma limited partnership




Hartz Capital MLP, LLC, a New Jersey limited liability company




ZLP Fund, L.P., a Delaware limited partnership




KED MME Investment Partners, LP, a Delaware limited partnership




Eagle Income Appreciation Partners, L.P., a Texas limited partnership




Eagle Income Appreciation II, L.P., a Texas limited partnership




Citigroup Financial Products, Inc., a Delaware corporation




The Northwestern Mutual Life Insurance Company, a Wisconsin corporation




Exhibit A-1




 









 





EXHIBIT A

to the

Second Amended and Restated

Agreement of Limited Partnership

of

Quest Midstream Partners, L.P.




Certificate Evidencing Common Units

Representing Limited Partner Interests

in

Quest Midstream Partners, L.P.




No. [               ] [               ]Common Units




     In accordance with Section 4.1 of the Second Amended and Restated Agreement of Limited
Partnership of Quest Midstream Partners, L.P., as amended, supplemented or restated from time to
time (the “Partnership Agreement”), Quest Midstream Partners, L.P., a Delaware limited partnership
(the “Partnership”), hereby certifies that [                    ] (the “Holder”) is the registered owner
of Common Units representing limited partner interests in the Partnership (the “Common Units”)
transferable on the books of the Partnership, in person or by duly authorized attorney, upon
surrender of this Certificate properly endorsed. The rights, preferences and limitations of the
Common Units are set forth in, and this Certificate and the Common Units represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the Partnership
Agreement. Copies of the Partnership Agreement are on file at, and will be furnished without charge
on delivery of written request to the Partnership at, the principal office of the Partnership
located at
[                                        ]. Capitalized terms used herein but not
defined shall have the meanings given them in the Partnership Agreement.



     THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF QUEST MIDSTREAM PARTNERS, L.P.
THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IF SUCH
TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR RULES AND
REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER
GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER SUCH TRANSFER, (B) TERMINATE THE EXISTENCE OR
QUALIFICATION OF QUEST MIDSTREAM PARTNERS, L.P. UNDER THE LAWS OF THE STATE OF DELAWARE, (C) CAUSE
QUEST MIDSTREAM PARTNERS, L.P. TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR
OTHERWISE TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO
TREATED OR TAXED), (D) VIOLATE THE TERMS AND CONDITIONS OF THE SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF QUEST MIDSTREAM PARTNERS, L.P., DATED NOVEMBER 1, 2007, AS THE
SAME MAY BE AMENDED FROM TIME TO TIME, OR (E) VIOLATE THE TERMS AND CONDITIONS



Exhibit A-2




 









 







OF THE AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT, DATED NOVEMBER 1, 2007, AS THE SAME
MAY BE AMENDED FROM TIME TO TIME, BY AND AMONG QUEST MIDSTREAM PARTNERS, L.P. AND ITS GENERAL AND
LIMITED PARTNERS. QUEST MIDSTREAM GP, LLC, THE GENERAL PARTNER OF QUEST MIDSTREAM PARTNERS, L.P.,
MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF
COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF QUEST MIDSTREAM
PARTNERS, L.P. BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR
FEDERAL INCOME TAX PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF
ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY NATIONAL
SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING.




     The Holder, by accepting this Certificate, is deemed to have (i) requested admission as, and
agreed to become, a Limited Partner and to have agreed to comply with and be bound by and to have
executed the Partnership Agreement, (ii) represented and warranted that the Holder has all right,
power and authority and, if an individual, the capacity necessary to enter into the Partnership
Agreement, (iii) granted the powers of attorney provided for in the Partnership Agreement and (iv)
made the waivers and given the consents and approvals contained in the Partnership Agreement.



Exhibit A-3




 









 





     This Certificate shall not be valid for any purpose unless it has been countersigned and
registered by the Transfer Agent and Registrar.



	 	 	 	 	 	 	 
	Dated:                                         	 	Quest Midstream Partners, L.P.	 	 
	 
	 	 	 	 	 	 
	Countersigned and Registered by:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	By:                                         as Transfer
Agent and Registrar
	 	 	 	 	 	 






Exhibit A-4




 









 





[Reverse of Certificate]




ABBREVIATIONS




     The following abbreviations, when used in the inscription on the face of this Certificate,
shall be construed as follows according to applicable laws or regulations:



	 	 	 	 	 	 	 
	TEN COM — as tenants in common	 	UNIF GIFT/TRANSFERS MIN ACT
	 	 	                     Custodian                     
	TEN ENT — as tenants by entireties

	 	(Cust)
	 	 	(Minor)	 
	JT TEN — as joint tenants with right
of survivorship and not as tenants
in common	 	Under Uniform Gifts/Transfers to CD
Minors Act (state)





Additional abbreviations, though not in the above list, may also be used.




Exhibit A-5




 









 








ASSIGNMENT OF COMMON UNITS

Quest Midstream Partners, L.P.




     FOR VALUE RECEIVED,                                          hereby assigns, conveys, sells and transfers unto



	 	 	 
	(Please print or typewrite name and
address of Assignee)

	 	(Please insert Social Security or
other identifying number of
Assignee)





Common Units representing limited partner interests evidenced by this
Certificate, subject to the Partnership Agreement, and does hereby irrevocably
constitute and appoint                                          as its attorney-in-fact with full
power of substitution to transfer the same on the books of Quest Midstream
Partners, L.P.




	 	 	 
	Date:                     

	 	NOTE: This signature to any
endorsement hereon must correspond
with the name as written upon the
face of this Certificate in every
particular, without alteration,
enlargement or change.
	 
	 	 
	 

	 	 
	SIGNATURES MUST BE GUARANTEED BY A
MEMBER OF THE FIRM OF THE NATIONAL
ASSOCIATION OF SECURITIES DEALER,
INC. OR BY A COMMERCIAL BANK OR
TRUST COMPANY SIGNATURE(S)
GUARANTEED

	 	(Signature)
	 

	 	 
	 

	 	(Signature)






Exhibit A-6