exv10w13



 





Exhibit 10.13




AGREEMENT OF LIMITED PARTNERSHIP




OF




EPE UNIT II, L.P.




Dated as of




December 5, 2006




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I
	 	 	 	 
	DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	1.01 Certain Definitions

	 	 	1	 
	1.02 Other Definitions

	 	 	5	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	ORGANIZATIONAL MATTERS
	 	 	 	 
	 
	 	 	 	 
	2.01 Formation

	 	 	5	 
	2.02 Name

	 	 	5	 
	2.03 Registered Office; Registered Agent; Other Offices

	 	 	5	 
	2.04 Purposes

	 	 	5	 
	2.05 Certificate; Foreign Qualification

	 	 	6	 
	2.06 Term

	 	 	6	 
	2.07 Merger or Consolidation

	 	 	6	 
	 
	 	 	 	 
	 ARTICLE III
	 	 	 	 
	 PARTNERS; DISPOSITIONS OF INTERESTS
	 	 	 	 
	 
	 	 	 	 
	3.01 Partners

	 	 	6	 
	3.02 Representations and Warranties

	 	 	6	 
	3.03 Restrictions on the Disposition of an Interest

	 	 	7	 
	3.04 Additional Partners

	 	 	8	 
	3.05 Interests in a Partner

	 	 	9	 
	3.06 Spouses of Partners

	 	 	9	 
	3.07 Vesting of Limited Partners

	 	 	9	 
	ARTICLE IV
	 	 	 	 
	CAPITAL CONTRIBUTIONS
	 	 	 	 
	 
	 	 	 	 
	4.01 Initial and Additional Capital Contributions

	 	 	9	 
	4.02 Return of Contributions

	 	 	10	 
	4.03 Advances by General Partner

	 	 	10	 
	4.04 Capital Accounts

	 	 	10	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	ALLOCATIONS AND DISTRIBUTIONS
	 	 	 	 
	 
	 	 	 	 
	5.01 Allocations

	 	 	11	 
	5.02 Income Tax Allocations

	 	 	13	 
	5.03 Distributions of Cashflow from EPE Units

	 	 	13	 
	5.04 Distributions of Proceeds from Sales of EPE Units

	 	 	14	 
	5.05 Restrictions on Distributions of EPE Units

	 	 	14	 






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	ARTICLE VI
	 	 	 	 
	MANAGEMENT AND OPERATION
	 	 	 	 
	 
	 	 	 	 
	6.01 Management of Partnership Affairs

	 	 	14	 
	6.02 Duties and Obligations of General Partner

	 	 	15	 
	6.03 Release and Indemnification

	 	 	15	 
	6.04 Power of Attorney

	 	 	16	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	RIGHTS OF OTHER PARTNERS
	 	 	 	 
	 
	 	 	 	 
	7.01 Information

	 	 	17	 
	7.02 Limitations

	 	 	18	 
	7.03 Limited Liability

	 	 	18	 
	ARTICLE VIII
	 	 	 	 
	TAXES
	 	 	 	 
	 
	 	 	 	 
	8.01 Tax Returns

	 	 	18	 
	8.02 Tax Elections

	 	 	18	 
	8.03 Tax Matters Partner

	 	 	19	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
	 	 	 	 
	 
	 	 	 	 
	9.01 Maintenance of Books

	 	 	19	 
	9.02 Financial Statements

	 	 	19	 
	9.03 Bank Accounts

	 	 	19	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	WITHDRAWAL, BANKRUPTCY, REMOVAL, ETC.
	 	 	 	 
	 
	 	 	 	 
	10.01 Withdrawal, Bankruptcy, Etc. of General Partner

	 	 	19	 
	10.02 Conversion of Interest

	 	 	20	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	DISSOLUTION, LIQUIDATION, AND TERMINATION
	 	 	 	 
	 
	 	 	 	 
	11.01 Dissolution

	 	 	20	 
	11.02 Liquidation and Termination

	 	 	21	 
	11.03 Cancellation of Certificate

	 	 	22	 
	 
	 	 	 	 
	ARTICLE XII
	 	 	 	 
	GENERAL PROVISIONS
	 	 	 	 
	 
	 	 	 	 
	12.01 Offset

	 	 	22	 
	12.02 Notices

	 	 	23	 
	12.03 Entire Agreement; Supersedure

	 	 	23	 






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	12.04 Effect of Waiver or Consent

	 	 	23	 
	12.05 Amendment or Modification

	 	 	23	 
	12.06 Binding Effect; Joinder of Additional Parties

	 	 	23	 
	12.07 Construction

	 	 	23	 
	12.08 Further Assurances

	 	 	24	 
	12.09 Indemnification

	 	 	24	 
	12.10 Waiver of Certain Rights

	 	 	24	 
	12.11 Counterparts

	 	 	24	 
	12.12 Dispute Resolution

	 	 	24	 
	12.13 No Effect on Employment Relationship

	 	 	27	 
	12.14 Legal Representation

	 	 	27	 







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AGREEMENT OF LIMITED PARTNERSHIP

OF

EPE UNIT II, L.P.




     This Agreement of Limited Partnership (this “Agreement”) of EPE Unit II, L.P., a
Delaware limited partnership (the “Partnership”), is made and entered into effective as of
December 5, 2006 by and among the Partners (as defined below).



RECITALS




     FOR AND IN CONSIDERATION OF the mutual covenants, rights, and obligations set forth herein,
the benefits to be derived therefrom, and other good and valuable consideration, the receipt and
sufficiency of which each Partner acknowledges and confesses, the Partners hereby agree as follows:



ARTICLE I

DEFINITIONS




     1.01 Certain Definitions. As used in this Agreement, the following terms have the
following respective meanings:



     “Act” means the Delaware Revised Uniform Limited Partnership Act and any successor
statute, as amended from time to time.



     “Adjusted Capital Account” means, with respect to any Partner, the balance in such
Partner’s Capital Account after giving effect to the following adjustments:




	 	(a)	 	Credit to such Capital Account of any amounts that such Partner is obligated or
deemed obligated to contribute pursuant to the penultimate sentences of Sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and
	 
	 	(b)	 	Debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the
Regulations.





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



     “Adjustment Date” means the (i) the fifth Business Day following the payment date with
respect to each distribution made by EPE with respect to EPE Units, and (ii) the fifth Business Day
following the receipt of any proceeds by the Partnership from the disposition of EPE Units.



     “Affiliate” means with respect to any Person any other Person that directly or
indirectly through one or more intermediaries, controls or is controlled by, or is under common
control with, the Person specified. For the purpose of this definition, “control” shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.



 









 





     “Agreement” has the meaning given it in the introductory paragraph hereof.



     “Applicable Percentage” means with respect to a disposition of less than all the EPE
Units owned by the Partnership, the quotient (expressed as a percentage) of the number of EPE Units
held by the Partnership immediately after such disposition divided by the number of EPE Units held
by the Partnership immediately before such disposition.



     “Bankrupt Partner” means any Partner (whether a General Partner or a Limited Partner)
with respect to which an event of the type described in Section 17-402(a)(4) or (5) of the Act (or
any equivalent successor provision) shall have occurred, subject to the lapsing of any period of
time therein specified.



     “Business Day” means any day other than a Saturday, Sunday, or day on which commercial
banks in the State of Texas are authorized or required to be closed for business.



     “Capital Account” means the account maintained for each Partner pursuant to
Section 4.04.



     “Capital Contribution” means any contribution by a Partner to the capital of the
Partnership.



     “Certificate” means the Certificate of Limited Partnership of the Partnership referred
to in Section 2.05, as it may be amended or restated from time to time.



     “Change of Control” means Duncan shall (i) cease to own, directly or indirectly, at
least a majority of the equity interests in the General Partner or the general partner of EPE, or
(ii) shall cease to have the ability to elect, directly or indirectly, at least a majority of the
directors of the general partner of EPD.



     “Class A Capital Base” means $1,500,000 adjusted on each Adjustment Date as follows:




	 	(a)	 	increased by the Class A Preference Return that has accrued since the previous
Adjustment Date (or in the case of the first Adjustment Date, since the Closing Date);
and
	 
	 	(b)	 	decreased by all distributions made to the Class A Limited Partner since the
previous Adjustment Date (or in the case of the first Adjustment Date, since the
Closing Date).





     “Class A Limited Partner” means Duncan Family Interests, Inc., a Delaware corporation,
and its successors and assigns.



     “Class A Preference Return” means the sum of the amounts determined for each day,
equal to the Class A Preference Return Rate multiplied by the Class A Capital Base.



 - 2 - 









 





     “Class A Preference Return Amount” means the aggregate Class A Preference Return minus
all prior distributions to the Class A Limited Partner pursuant to Sections 5.03(a) and
5.04(a).



     “Class A Preference Return Rate” means 61/4% per annum divided by 365 or 366 days, as
the case may be during such calendar year.



     “Class B Limited Partner” means any Person executing (by power of attorney or
otherwise) this Agreement as of the date hereof as a Class B Limited Partner or hereafter admitted
to the Partnership as a Class B Limited Partner as herein provided, but shall not include any
Person who has ceased to be a Class B Limited Partner in the Partnership.



     “Class B Percentage Interest” means with respect to each Class B Limited Partner the
quotient (expressed as a percentage) of (i) such Class B Limited Partner’s Sharing Points, divided
by (ii) the Sharing Points of all Class B Limited Partners. For purposes of calculating the Class
B Percentage Interest, Sharing Points attributable to interests in the Partnership that are
forfeited pursuant to Section 3.07 shall be ignored.



     “Closing Date” means the date on which the Class A Limited Partner contributed
$1,500,000 cash to the Partnership.



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



     “Default Interest Rate” means a varying per annum rate equal at any given time to the
lesser of (a) four percentage points in excess of the General Interest Rate and (b) the maximum
rate permitted by applicable law.



     “Disability” means the event whereby a Limited Partner becomes entitled to receive
long-term disability benefits under the long-term disability plan of the General Partner or any of
its Affiliates.



     “Dispose,” “Disposing,” or “Disposition” means a sale, assignment,
transfer, exchange, mortgage, pledge, grant of a security interest, or other disposition or
encumbrance, or the acts thereof, other than by divorce, legal separation or other dissolution of a
Partner’s marriage.



     “Duncan” means, collectively, individually or in any combination, Dan L. Duncan, his
wife, descendants, heirs and/or legatees and/or distributees of Dan L. Duncan’s estate, and/or
trusts established for the benefit of his wife, descendants, such legatees and/or distributees
and/or their respective descendants, heirs, legatees and distributees.



     “EPCO” means EPCO, Inc., a Texas corporation.



     “EPD” means Enterprise Products Partners L.P., a Delaware limited partnership.



     “EPE” means Enterprise GP Holdings L.P., a Delaware limited partnership.



     “EPE Units” means partnership units representing limited partner interests in EPE.



 - 3 - 









 





     “General Interest Rate” means a varying per annum rate equal at any given time to the
lesser of (a) the interest rate publicly quoted by J.P. Morgan Chase from time to time as its prime
commercial or similar reference interest rate, and (b) the maximum rate permitted by applicable
law.



     “General Partner” means EPCO, Inc., a Texas corporation, or any Person hereafter
admitted to the Partnership as a general partner as herein provided, but shall not include any
Person who has ceased to be a general partner in the Partnership.



     “Limited Partner” means the Class A Limited Partner or any Class B Limited Partner.



     “Net Income” and “Net Loss” mean, respectively, subject to Section
4.04, an amount equal to the Partnership’s taxable income or loss determined in accordance with
Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be
stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss),
with the following adjustments:



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



     (b) Any expenditures of the Partnership described in Code Section 705(a)(2)(B) or treated as
Code Section 705(a)(2)(B) expenditures pursuant to Section 1.704-1(b)(2)(iv)(i) of the Regulations,
and not otherwise taken into account in computing Net Income or Net Loss pursuant to this
definition of Net Income and Net Loss, shall be subtracted from such taxable income or loss;



     (c) In the event the value of any Partnership property is adjusted pursuant to Section
4.04 (i) such adjustment shall be taken into account as gain or loss from the disposition of
such Partnership property for purposes of computing Net Income or Net Loss, (ii) if such property
is subject to depreciation, cost recovery, depletion or amortization, any further deductions for
such depreciation, cost recovery, depletion or amortization attributable to such property shall be
determined taking into account such adjustment, and (ii) in determining the amount of any income,
gain or loss attributable to the taxable disposition of such property such adjustment (and the
related adjustments for depreciation, cost recovery, depletion or amortization) shall be taken into
account;



     (d) To the extent an adjustment to the adjusted tax basis of any Partnership Property pursuant
to Code Section 734(b) is required, pursuant to Section 1.704-1(b)(2)(iv)(m)(4) of the Regulations,
to be taken into account in determining Capital Accounts as a result of a Distribution other than
in liquidation of a Partner’s interest in the Partnership, the amount of such adjustment shall be
treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the
adjustment decreases such basis) from the disposition of such Partnership Property and shall be
taken into account for purposes of computing Net Income or Net Loss; and



     (e) Any items that are allocated pursuant to Section 5.01(b) shall not be taken into
account in computing Net Income or Net Loss.



 - 4 - 









 





     “Partner” means the General Partner, the Class A Limited Partner or any Class B
Limited Partner.



     “Partnership” has the meaning given it in the introductory paragraph.



     “Person” has the meaning given it in the Act.



     “Qualifying Termination” means the termination of a Class B Limited Partner’s
employment with the General Partner and its Affiliates due to (i) death, (ii) receiving long-term
disability benefits under the long-term disability plan of the General Partner or any of its
Affiliates or (iii) retirement with the approval of the General Partner on or after reaching age
60.



     “Regulations” means the regulations promulgated under Section 704 of the Code.



     “Required Interest” means one or more Class B Limited Partners having among them more
than 50% of the Class B Percentage Interests of all Limited Partners in its or their capacities as
such.



     “Sharing Points” means, with respect to each Class B Limited Partner, the number of
Sharing Points granted by the General Partner to such Class B Limited Partner (which number is set
forth on the Power of Attorney executed by the Class B Limited Partner and delivered to the General
Partner), as the same may be amended from time to time pursuant to the terms of this Agreement.



     “Vesting Date” means the earliest of (i) the fifth anniversary of the date of this
Agreement, (ii) a Change of Control or (iii) dissolution of the Partnership.



     1.02 Other Definitions. Other terms defined herein have the meanings so given them.



ARTICLE II

ORGANIZATIONAL MATTERS




     2.01 Formation. The Partnership has been previously formed as a Delaware limited
partnership for the purposes hereinafter set forth under and pursuant to the provisions of the Act.



     2.02 Name. The name of the Partnership is “EPE Unit II, L.P.” and all Partnership
business shall be conducted in such name or such other name or names that comply with applicable
law as the General Partner may designate from time to time.



     2.03 Registered Office; Registered Agent; Other Offices. The registered office of the
Partnership in the State of Delaware shall be at such place as the General Partner may designate
from time to time. The registered agent for service of
process on the Partnership in the State of Delaware or any other jurisdiction shall be such
Person or Persons as the General Partner may designate from time to time. The Partnership may have
such other offices as the General Partner may designate from time to time.



     2.04 Purposes. The purposes of the Partnership are to acquire, own, sell, exchange or
otherwise dispose of EPE Units, and to enter into, make and perform all contracts and other



 - 5 - 









 





undertakings and to engage in any other business, activity or transaction that now or hereafter may
be necessary, incidental, proper, advisable, or convenient, as determined by the General Partner,
to accomplish the foregoing purposes.



     2.05 Certificate; Foreign Qualification. The General Partner has previously executed
and caused to be filed with the Secretary of State of the State of Delaware a Certificate of
Limited Partnership, effective as of December 5, 2006, containing information required by the Act
and such other information as the General Partner deemed appropriate. Prior to conducting business
in any jurisdiction other than Delaware, the General Partner shall cause the Partnership to comply,
to the extent such matters are reasonably within the control of the General Partner, with all
requirements necessary to qualify the Partnership as a foreign limited partnership (or a
partnership in which the Limited Partners have limited liability) in such jurisdiction. Upon the
request of the General Partner, each Partner shall execute, acknowledge, swear to, and deliver all
certificates and other instruments conforming with this Agreement that are necessary or appropriate
as determined by the General Partner to qualify, continue, and terminate the Partnership as a
limited partnership under the laws of the State of Delaware and to qualify, continue, and terminate
the Partnership as a foreign limited partnership (or a partnership in which the Limited Partners
have limited liability) in all other jurisdictions in which the Partnership may conduct business,
and to this end the General Partner may use the power of attorney described in Section
6.04.



     2.06 Term. The term of this Partnership shall continue in existence until the close
of Partnership business on the earliest to occur of (i) the fiftieth anniversary of the date of
this Agreement, and (ii) such earlier time as this Agreement may specify.



     2.07 Merger or Consolidation. The Partnership may merge or consolidate with or into
another business entity, or enter into an agreement to do so, with the consent of the General
Partner and a Required Interest.



ARTICLE III

PARTNERS; DISPOSITIONS OF INTERESTS




     3.01 Partners. The General Partner, the Class A Limited Partner and the Class B
Limited Partner of the Partnership are the Persons executing (by power of attorney or otherwise)
this Agreement as
of the date hereof as the General Partner, the Class A Limited Partner and the Class B Limited
Partner, respectively, each of which is admitted to the Partnership as the General Partner, Class A
Limited Partner or a Class B Limited Partner, as the case may be, effective as of the date hereof.



     3.02 Representations and Warranties. Each Partner hereby represents and warrants to
the Partnership and each other Partner that (a) if such Partner is a corporation, it is duly
organized, validly existing, and in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified and in good standing as a foreign corporation in the
jurisdiction of its principal place of business (if not incorporated therein), (b) if such Partner
is a trust, estate or other entity, it is duly formed, validly existing, and (if applicable) in
good standing under the laws of the jurisdiction of its formation, and if required by law is duly
qualified to do business and (if applicable) in good standing in the jurisdiction of its principal



 - 6 - 









 





place of business (if not formed therein), (c) such Partner has full corporate, trust, or other
applicable right, power and authority to enter into this Agreement and to perform its obligations
hereunder and all necessary actions by the board of directors, trustees, beneficiaries, or other
Persons necessary for the due authorization, execution, delivery, and performance of this Agreement
by such Partner have been duly taken, and such authorization, execution, delivery, and performance
do not conflict with any other agreement or arrangement to which such Partner is a party or by
which it is bound, and (d) such Partner is acquiring its interest in the Partnership for investment
purposes and not with a view to distribution thereof.



     3.03 Restrictions on the Disposition of an Interest. (a) The Class B Limited Partner
may not Dispose of all or part of its interest in the Partnership without the prior written consent
(which may be given or withheld in its sole discretion) of the General Partner, and then only after
Sections 3.03(c), (d) and (e) have been complied with, except that the
Class B Limited Partner may Dispose of all of its interest upon the death of such Class B Limited
Partner or upon becoming a Bankrupt Partner, but in each case only after compliance with
Sections 3.03(c), (d) and (e). Neither the General Partner nor the Class A
Limited Partner may Dispose of all or a part of its interest in the Partnership to a Person who is
not an Affiliate of Duncan without the prior written consent of a Required Interest, and then only
after Sections 3.03(c), (d) and (e) have been complied with.



     (b) Subject to the provisions of Sections 3.03(c), (d) and (e), a
permitted transferee of all or a part of a Partner’s interest in the Partnership shall be admitted
to the Partnership as a General Partner or a Limited Partner (as applicable) with, in the case of
the Class B Limited Partner, such Sharing Points (no greater than the Sharing Points of the Class B
Limited Partner effecting such Disposition immediately prior thereto) as the Partner effecting such
Disposition and such permitted transferee may agree.



     (c) The Partnership shall not recognize for any purpose any purported Disposition of an
interest in the Partnership or distributions therefrom unless and until the provisions of this
Section 3.03 shall have been satisfied and there shall have been delivered to the General
Partner a document (i) executed by both the Partner effecting such Disposition and the Person to
which such interest or interest in distributions are to be Disposed, (ii) including the written
acceptance
by any Person to be admitted to the Partnership of all the terms and provisions of this
Agreement, such Person’s notice address, and an agreement by such Person to perform and discharge
timely all of the obligations and liabilities in respect of the interest being obtained, (iii)
setting forth, in the case of the Class B Limited Partner, the Sharing Points of the Class B
Limited Partner effecting such Disposition and the Person to which such interest is Disposed after
such Disposition (which together shall total the Sharing Points of the Class B Limited Partner
effecting such Disposition prior thereto), (iv) containing a representation and warranty that such
Disposition complied with all applicable laws and regulations (including securities laws) and a
representation and warranty by such Person that the representations and warranties in Section
3.02 are true and correct with respect to such Person. Each such Disposition and, if
applicable, admission shall be effective as of the first day of the calendar month immediately
succeeding the month in which the General Partner shall receive such notification of Disposition
and the other requirements of this Section 3.03 shall have been met unless the General
Partner and the Partner affecting such Disposition agree to a different effective date; provided,
however, that if there shall be only one General Partner and such Disposition or admission and, as
a result of such Disposition such General Partner would cease to be a General Partner, such
permitted transferee shall be deemed admitted as a General Partner immediately prior to such
cessation.



 - 7 - 









 





     (d) Notwithstanding any provision of this Agreement to the contrary, the right of any Partner
to Dispose of an interest in the Partnership or distributions therefrom or of any Person to be
admitted to the Partnership in connection therewith shall not exist or be exercised (i) unless and
until the Partnership shall have received a favorable opinion of the Partnership’s legal counsel or
of other legal counsel acceptable to the General Partner to the effect that such Disposition or
admission is not required to be registered under the Securities Act of 1933 or any other applicable
securities laws, and such Disposition or admission would not cause the Partnership to become an
“investment company” required to register under the Investment Company Act of 1940, and (ii) unless
such Disposition or admission would not result in the Partnership being treated as an association
taxable as a corporation for federal income tax purposes or as a publicly traded partnership as
defined in Section 7704 of the Code. The General Partner, however, may waive the requirements of
Section 3.03(d)(i).



     (e) All costs (including, without limitation, the legal fees incurred in connection with the
obtaining of the legal opinions referred to in Section 3.03(d)) incurred by the Partnership
in connection with any Disposition or admission of a Person to the Partnership pursuant to this
Section 3.03 shall be borne and paid by the Partner effecting such Disposition within 10
days after the receipt by such Person of the Partnership’s invoice for the amount due.



     (f) In the event of a Disposition of an interest in the Partnership pursuant to the death of a
Limited Partner that would, in the opinion of the Partnership’s legal counsel, result in the
Partnership becoming an “investment company” required to register under the Investment Company Act
of 1940, the General Partner shall have the right to purchase such interest from the estate (or
beneficiaries) of such deceased Partner for a price equal to the amount that the deceased Partner’s
estate (or beneficiaries) would receive if all of the EPE Units held by the Partnership were sold
at a price equal to the closing sale price per EPE Unit as reported by the New York Stock Exchange
(or such other applicable trading market) on the day prior to the exercise of such right by the
General Partner and the proceeds from such sale were distributed to the Partners in accordance with
the provisions of Section 5.04. The determination by the
General Partner of the foregoing purchase price of such deceased Partner’s interest in the
Partnership shall be conclusive and binding on the deceased Partner’s estate and beneficiaries.



     (g) Any attempted Disposition by a Person of an interest or right, or any part thereof, in or
in respect of the Partnership other than in accordance with this Section 3.03 shall be, and
is hereby declared, null and void ab initio.



     3.04 Additional Partners. Subject to the provisions of Section 12.05 and
3.03, additional Persons may be admitted to the Partnership as General Partners or Limited
Partners, only to the extent that, and on such terms and conditions as, the General Partner shall
consent at the time of such admission or issuance. Such admission or issuance shall, in the case
of a Class B Limited Partner, specify the Sharing Points applicable thereto. Any such admission
must comply with the provisions of Section 3.03(d) and shall not be effective until such
new Partner shall have executed and delivered to the General Partner a document including such new
Partner’s notice address, acceptance of all the terms and provisions of this Agreement, an



 - 8 - 









 





agreement to perform and discharge timely all of its obligations and liabilities hereunder, and a
representation and warranty that the representations and warranties in Section 3.02 are
true and correct with respect to such new Partner.



     3.05 Interests in a Partner. No Partner that is not a natural person shall cause or
permit an interest, direct or indirect, in itself to be Disposed of such that, on account of such
Disposition, the Partnership would become an association taxable as a corporation for federal
income tax purposes.



     3.06 Spouses of Partners. A spouse of a Partner does not become a Partner as a result
of such marital relationship or by reason of a divorce, legal separation or other dissolution of
marriage. If, in the event of a divorce, legal separation or other dissolution of marriage of a
Partner, a former spouse of a Partner is awarded ownership of, or an interest in, all or part of a
Partner’s interest in the Partnership (the “Awarded Interest”), the Awarded Interest shall
automatically and immediately be forfeited and cancelled without payment on such date.



     3.07 Vesting of Limited Partners. One hundred percent (100%) of the Class B Limited
Partner’s interest in the Partnership shall vest on the Vesting Date, but only if (i) on such date
the Class B Limited Partner continues to be an active, full-time employee of the General Partner or
any of its Affiliates or (ii) prior to the Vesting Date a Qualifying Termination has occurred with
respect to the Class B Limited Partner. At such time as the Class B Limited Partner ceases, for
any reason other than a Qualifying Termination, to be an active, full-time employee of the General
Partner or any of its Affiliates prior to the Vesting Date, his unvested interest in the
Partnership shall be forfeited. If the Class B Limited Partner ceases to be an active, full-time
employee prior to the Vesting Date, as determined by the General Partner in its sole discretion,
without regard as to how his status is treated by the General Partner or any of its Affiliates for
any of its other
compensation or benefit plans or programs, the Class B Limited Partner will be deemed to have
terminated employment with the General Partner and its Affiliates and forfeited his unvested
interest in the Partnership for purposes of this Agreement. The Capital Account attributable to
any Class B Limited Partner’s interest in the Partnership that is forfeited pursuant to Section
3.06, this Section 3.07 or otherwise hereunder shall be allocated to the Class A
Limited Partner.



ARTICLE IV

CAPITAL CONTRIBUTIONS




     4.01 Initial and Additional Capital Contributions. In connection with the formation
of the Partnership, the General Partner contributed $1,000 to the Partnership and on the Closing
Date, the Class A Limited Partner contributed to the Partnership $1,500,000. The Class B Limited
Partner is not obligated to make a contribution to the Partnership. Subject to the provisions of
applicable law or except as otherwise provided for herein, no Partner shall be liable for or
obligated to make an additional Capital Contribution to the Partnership, whether for the purpose of
enabling the Partnership to meet its obligations under Section 6.03 or for any other
purpose. The initial Capital Account of the General Partner is $1,000, the initial Capital Account
of the Class A Limited Partner as of the Closing Date is $1,500,000, and the initial Capital
Account of the Class B Limited Partner is zero.



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     4.02 Return of Contributions. No Partner shall be entitled to the return of any part
of its Capital Contributions or to be paid interest in respect of either its Capital Account or any
Capital Contribution made by it. No unrepaid Capital Contribution shall be deemed or considered to
be a liability of the Partnership or of any Partner. No Partner shall be required to contribute,
advance or lend any cash or property to the Partnership to enable the Partnership to return any
Partner’s Capital Contributions to the Partnership. To the extent, however, any Partner (by
mistake, overpayment or otherwise) advances funds to the Partnership in excess of the Capital
Contributions called for under Section 4.01, such excess amounts shall not be Capital
Contributions and (other than advances made by the General Partner pursuant to Section 4.03
below) shall be promptly returned by the Partnership to the Partner so advancing such funds.



     4.03 Advances by General Partner. At any time that the Partnership shall not have
sufficient cash to pay its obligations, the General Partner may, but shall not be obligated to,
advance such funds for or on behalf of the Partnership. Each such advance shall constitute a loan
from the General Partner to the Partnership and shall bear interest from the date of the advance
until the date of repayment at the General Interest Rate. Any advances made by the General Partner
pursuant to this Section 4.03 shall not be considered to be Capital Contributions. All
advances shall be repaid out of the next available funds of the Partnership, including Capital
Contributions received.



     4.04 Capital Accounts. A Capital Account shall be established and maintained for each Partner. Each Partner’s
Capital Account (a) shall be increased by (i) the amount of money contributed by that Partner to
the Partnership, (ii) the fair market value of property, if any, contributed by that Partner to the
Partnership (net of liabilities secured by such contributed property that the Partnership is
considered to assume or take subject to under Section 752 of the Code), and (iii) allocations to
that Partner of Partnership income and gain (or items thereof), including income and gain exempt
from tax and income and gain described in Regulation Section 1.704-1(b)(2)(iv)(g), but excluding
income and gain described in Regulation Section 1.704-1(b)(4)(i), and (b) shall be decreased by (i)
the amount of money distributed to that Partner by the Partnership, (ii) the fair market value of
property distributed to that Partner by the Partnership (net of liabilities secured by such
distributed property that such Partner is considered to assume or take subject to under Section 752
of the Code), (iii) allocations to that Partner of expenditures of the Partnership described in
Section 705(a)(2)(B) of the Code, and (iv) allocations of Partnership loss and deduction (or items
thereof), including loss and deduction described in Regulation Section 1.704-1(b)(2)(iv)(g), but
excluding items described in clause (b)(iii) above and loss or deduction described in
Regulation Section 1.704-1(b)(4)(i). The Partners’ Capital Accounts also shall be maintained and
adjusted as permitted by the provisions of Regulation Section 1.704-1(b)(2)(iv)(f) and as required
by the other provisions of Regulation Sections 1.704-1(b)(2)(iv) and 1.704-1(b)(4), including
adjustments to reflect the allocations to the Partners of depreciation, amortization, and gain or
loss as computed for book purposes rather than the allocation of the corresponding items as
computed for tax purposes, as required by Regulation Section 1.704-1(b)(2)(iv)(g). A Partner that
has more than one interest in the Partnership shall have a single Capital Account that reflects all
such interests, regardless of the class of interests owned by such Partner and regardless of the
time or manner in which such interests were acquired; provided, that Partners that are Affiliates
but nevertheless separate legal entities shall have separate Capital Accounts. Upon the transfer
of all or part of an interest in the Partnership, the Capital Account of the transferor that is
attributable to the transferred interest in



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the Partnership shall carry over to the transferee
Partner in accordance with the provisions of Regulation Section 1.704-1(b)(2)(iv)(l).



ARTICLE V

ALLOCATIONS AND DISTRIBUTIONS




     5.01 Allocations.



     (a) Net Income and Net Loss. For purposes of maintaining the Capital Accounts, Net
Income or Net Loss (and all items included in the computation thereof) shall be allocated among the
Partners as follows:



          (i) Net Income:





          (A) First, to the Class A Limited Partner until the Class A Limited Partner’s
Adjusted Capital Account equals the Class A Capital Base; and




          (B) Thereafter, to the Class B Limited Partner in accordance with the Class B
Percentage Interest.



          (ii) Net Loss:





          (A) First, to the Class B Limited Partner in accordance with the Class B
Percentage Interest until the Adjusted Capital Account of the Class B Limited
Partner is reduced to zero; and




          (B) Thereafter, to the Class A Limited Partner.



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




     (i) Partnership Minimum Gain Chargeback. Notwithstanding any other provision
of this Section 5.01, 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 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 5.01(b), 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 5.01(b) with respect to such taxable period (other than an allocation
pursuant to Sections 5.01(b)(vi) and 5.01(b)(vii)). This Section
5.01(b)(i) is intended to comply with the Partnership Minimum Gain chargeback
requirement in 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 5.01 (other than Section 5.01(b)(i)),
except as provided in 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



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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 period (and, if
necessary, subsequent periods) in the manner and amounts provided in Regulation Sections
1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any successor provisions. For purposes of this
Section 5.01(b), 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 5.01(b), other
than Section 5.01(b)(i) and other than an allocation pursuant to Sections
5.01(b)(vi) and 5.01(b)(vii), with respect to such taxable period. This
Section 5.01(b)(ii) is intended to comply with the chargeback of items of income and
gain requirement in Regulation Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.




     (iii) Qualified Income Offset. In the event any Partner unexpectedly receives
any adjustments, allocations or distributions described in Regulation Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), 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 Regulations, 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 5.01(b)(i) or (ii).




     (iv) 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
Regulation Sections 1.704-2(g) and 1.704-2(i)(5), such Partner shall be specially allocated
items of Partnership gross income and gain in the amount of such excess as quickly as
possible; provided, that an allocation pursuant to this Section 5.01(b)(iv) 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 5.01
have been tentatively made as if this Section 5.01(b)(iv) were not in this
Agreement.




     (v) 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 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.




     (vi) 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 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.



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     (vii) Nonrecourse Liabilities. For purposes of 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.




     (viii) 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 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 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
Regulations.



     (c) Allocations Caused by Transfer of Interest. All items of income, gain, loss,
deduction, and credit allocable to any interest in the Partnership that may have been transferred
shall be allocated between the transferor and the transferee based upon that portion of the
calendar year during which each was recognized as owning such interest, without regard to the
results of Partnership operations during any particular portion of such calendar year and without
regard to distributions made to the transferor and the transferee during such calendar year;
provided, however, that such allocation shall be made in accordance with a method permissible under
Section 706 of the Code and the regulations thereunder.



     5.02 Income Tax Allocations.



     (a) Except as provided in this Section 5.02, each item of income, gain, loss and
deduction of the Partnership for federal income tax purposes shall be allocated among the Partners
in the same manner as such items are allocated for purposes of maintaining Capital Account under
Section 5.01.



     (b) For federal and state income tax purposes, income, gain, loss, and deduction with respect
to property contributed to the Partnership by a Partner or revalued pursuant to Regulation Section
1.704-1(b)(2)(iv)(f) shall be allocated among the Partners in a manner that takes into account the
variation between the adjusted tax basis of such property and its book value, as required by
Section 704(c) of the Code and Regulation Section 1.704-1(b)(4)(i), using any allocation method
permitted by Regulation Section 1.704-3.



     5.03 Distributions of Cashflow from EPE Units. Promptly following the receipt of any
distributions with respect to EPE Units, the General Partner shall cause to be distributed to the
Partners such receipts (and any income from the temporary investment thereof) in the manner set
forth below, provided, that the General Partner may withhold and not distribute such portion of any
such receipts that the General Partner has determined in its sole but good faith discretion should
be withheld to pay expenses of the Partnership. Distribution to the Partners pursuant to this
Section 5.03 shall be made as follows:



 - 13 - 









 





     (a) First, to the Class A Limited Partner until the Class A Limited Partner’s Class A
Preference Return Amount has been reduced to zero; and



     (b) Thereafter, to the Class B Limited Partner in accordance with the Class B Percentage
Interest.



     5.04 Distributions of Proceeds from Sales of EPE Units. Promptly following the
receipt of any proceeds from the sale of any EPE Units by the Partnership, the General Partner
shall cause to be distributed to the Partners such receipts in the
manner set forth below, provided that the General Partner may withhold and not distribute such
portion of any such receipts that the General Partner has determined in its sole but good faith
discretion should be withheld to pay expenses of the Partnership. Distribution to the Partners
pursuant to this Section 5.04 shall be made as follows:



     (a) First, to the Class A Limited Partner until the Class A Preference Return Amount has been
reduced to zero;



     (b) Next, to the Class A Limited Partner until the Class A Capital Base is reduced to zero;
and



     (c) Thereafter, to the Class B Limited Partner in accordance with the Class B Percentage
Interest.



     5.05 Restrictions on Distributions of EPE Units. The Partners and the Partnership
hereby agree that they shall not cause the Partnership to offer for sale, sell, pledge or otherwise
transfer, distribute or dispose of the EPE Units held by the Partnership prior to the Vesting Date.



ARTICLE VI

MANAGEMENT AND OPERATION




     6.01 Management of Partnership Affairs. Except for situations in which the approval
of the Limited Partners is expressly required by this Agreement or by non-waivable provisions of
applicable law, the General Partner shall have full, complete, and exclusive authority to manage
and control the business, affairs, and properties of the Partnership, to make all decisions
regarding the same, and to perform any and all other acts or activities customary or incident to
the management of the Partnership’s business. The General Partner shall receive no compensation
for its services as such. Subject to the other express provisions hereof, the General Partner
shall make or take all decisions and actions for the Partnership not otherwise provided for herein,
including, without limitation, the following:



     (a) acquiring, holding, managing, selling, Disposing of, and otherwise dealing with and
investing in (i) the Partnership’s EPE Units, or (ii) temporary investments of Partnership capital
in U.S. government securities, certificates of deposit with maturities of less than one year,
commercial paper (rated or unrated), and other highly liquid securities;



 - 14 - 









 





     (b) entering into, making, and performing all contracts, agreements, and other undertakings
binding the Partnership, as may be necessary, appropriate, or advisable in furtherance of the
purposes of the Partnership and making all decisions and waivers thereunder;



     (c) opening and maintaining bank and investment accounts and drawing checks and other orders
for the payment of monies;



     (d) maintaining the assets of the Partnership in compliance with applicable securities laws
and protecting and preserving the Partnership’s title thereto;



     (e) collecting all sums due the Partnership;



     (f) to the extent that funds of the Partnership are available therefor, paying as they become
due all debts and obligations of the Partnership;



     (g) causing securities owned by the Partnership to be registered in the Partnership’s name or
in the name of a nominee or to be held in street name, as the General Partner may elect;



     (h) selecting, removing, and changing the authority and responsibility of lawyers,
accountants, brokers, and other advisors and consultants;



     (i) obtaining insurance for the Partnership to the extent the General Partner deems
appropriate; and



     (j) determining distributions of Partnership cash as provided in Sections 5.03 and
5.04.



     6.02 Duties and Obligations of General Partner. The General Partner shall endeavor to
conduct the affairs of the Partnership in the best interests of the Partnership and the mutual best
interests of the Partners, including, without limitation, the safekeeping and use of all
Partnership funds and assets and the use thereof for the benefit of the Partnership. The General
Partner at all times shall act in good faith in all activities relating to the conduct of the
business of the Partnership. The General Partner shall devote such time as it deems necessary to
conduct the business and affairs of the Partnership in an appropriate manner.



     6.03 Release and Indemnification. TO THE FULLEST EXTENT PERMITTED BY LAW, THE
PARTNERSHIP AND EACH OTHER PARTNER ON BEHALF OF ITSELF AND ITS SUCCESSORS AND ASSIGNS HEREBY
RELEASES, ACQUITS, AND FOREVER DISCHARGES THE GENERAL PARTNER AND THE CLASS A LIMITED PARTNER,
THEIR PARTNERS OR SHAREHOLDERS, AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS,
REPRESENTATIVES, AND AGENTS AND EACH OTHER PERSON, IF ANY, CONTROLLING OR EMPLOYING SUCH PERSONS OR
ENTITIES (COLLECTIVELY, THE “INDEMNITEES”) FROM ALL CLAIMS, DEMANDS, OR CAUSES OF ACTION OF
ANY CHARACTER THAT SUCH PARTY MAY HAVE, WHETHER KNOWN OR UNKNOWN, AGAINST ANY INDEMNITEE IN
CONNECTION WITH THE PARTNERSHIP AND/OR THE BUSINESS CONDUCTED BY THE PARTNERSHIP; PROVIDED,
HOWEVER, THAT SUCH RELEASE SHALL NOT APPLY TO ACTIONS CONSTITUTING WILLFUL



 - 15 - 









 





MISCONDUCT OR BAD FAITH.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTNERSHIP SHALL INDEMNIFY AND HOLD HARMLESS EACH
INDEMNITEE FROM AND AGAINST ALL LOSSES, COSTS, CLAIMS, LIABILITIES, DAMAGES, EXPENSES (INCLUDING,
WITHOUT LIMITATION, COSTS OF SUIT AND ATTORNEYS’ FEES) SUCH INDEMNITEE MAY INCUR IN CONNECTION WITH
THE GENERAL PARTNER’S PERFORMING ITS OBLIGATIONS HEREUNDER (INCLUDING
WITHOUT LIMITATION LOSSES, COSTS, CLAIMS, LIABILITIES, DAMAGES AND EXPENSES ARISING FROM, OR
ALLEGED TO ARISE FROM, THE INDEMNITEE’S ACTIVE OR PASSIVE, SOLE OR CONCURRENT, NEGLIGENCE OR GROSS
NEGLIGENCE), AND THE PARTNERSHIP SHALL ADVANCE EXPENSES ASSOCIATED WITH THE DEFENSE OF ANY ACTION
RELATED THERETO; PROVIDED, HOWEVER, THAT SUCH INDEMNITY SHALL NOT APPLY TO ACTIONS WHICH HAVE BEEN
FINALLY, WITHOUT FURTHER RIGHT TO APPEAL, JUDICIALLY DETERMINED TO CONSTITUTE WILLFUL MISCONDUCT OR
BAD FAITH. IF THE INDEMNIFICATION PROVIDED FOR ABOVE IS NOT PERMITTED OR ENFORCEABLE UNDER
APPLICABLE LAW OR IS OTHERWISE UNAVAILABLE OR INSUFFICIENT TO HOLD HARMLESS THE INDEMNITEES AS
CONTEMPLATED ABOVE, THEN THE PARTNERSHIP SHALL CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY THE
INDEMNITEES AS A RESULT OF SUCH LOSSES, COSTS, CLAIMS, LIABILITIES, DAMAGES AND EXPENSES REFERRED
TO ABOVE IN SUCH PROPORTION AS IS APPROPRIATE TO REFLECT THE RELATIVE BENEFITS CONTEMPLATED TO BE
RECEIVED BY THE PARTNERSHIP AND THE INDEMNITEES, RESPECTIVELY, FROM THE ACTIONS GIVING RISE TO SUCH
LOSSES, COSTS, CLAIMS, LIABILITIES, DAMAGES OR EXPENSES.



     6.04 Power of Attorney.



     (a) Each Limited Partner hereby constitutes and appoints the General Partner and, if a
liquidator (other than the General Partner) shall have been selected pursuant to Section
11.02, the liquidator, severally (and any successor to either thereof 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 deems 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 deems 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



 - 16 - 









 





(including conveyances and a certificate of cancellation)
that the General Partner or the liquidator deems necessary or appropriate to reflect the
dissolution and liquidation of the Partnership pursuant to the terms of this Agreement; and
(D) all certificates, documents and other instruments relating to the admission, withdrawal,
removal or substitution of any Partner; and




     (ii) execute, swear to, acknowledge, deliver, file and record all ballots, consents,
approvals, waivers, certificates, documents and other instruments necessary or appropriate,
in the discretion of the General Partner or the liquidator, 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 is necessary or
appropriate, in the discretion of the General Partner or the liquidator, to effectuate the
terms or intent of this Agreement; provided, that when required by any provision of this
Agreement that establishes a percentage of the Limited Partners required to take any action,
the General Partner and the liquidator may exercise the power of attorney made in this
Section 6.04 only after the necessary vote, consent or approval of the Limited
Partners.



This Section 6.04 shall be construed as authorizing the General Partner to amend this
Agreement in any manner subject to any provision of this Agreement that establishes a percentage of
the Limited Partners required to take any action.



     (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
Percentage 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 deems necessary to effectuate this Agreement and the
purposes of the Partnership.



ARTICLE VII

RIGHTS OF OTHER PARTNERS




     7.01 Information. In addition to the other rights specifically set forth herein, each
Partner shall have access to all information to which such Partner is entitled to have access
pursuant to Section 17-305 of the Act under the circumstances and subject to the conditions therein
stated. Without limiting the provisions of Section 17-305(b) of the Act, the Partners agree that
if the General Partner from time to time enters into on behalf of the Partnership or the General
Partner contractual obligations regarding the confidentiality of information received with respect
to the Partnership’s business or assets, it shall not be reasonable for any other



 - 17 - 









 





Partner or
assignee or representative thereof to examine or copy such information unless such Partner agrees
to comply with the terms of such contractual obligations including without limitation executing a
counterpart of any applicable confidentiality agreements.



     7.02 Limitations. No Limited Partner shall have the authority or power in its
capacity as such to act for or on behalf of the Partnership or any other Partner, to do any act
that would be binding on the Partnership or any other Partner, or to incur any expenditures on
behalf of or with respect to the Partnership. No Limited Partner shall have the right or power to
withdraw from the Partnership.



     7.03 Limited Liability. No Limited Partner shall be liable for the losses, debts,
liabilities, contracts, or other obligations of the Partnership except to the extent required by
law or otherwise set forth herein.



ARTICLE VIII

TAXES




     8.01 Tax Returns. The General Partner shall cause to be prepared and filed all
necessary federal and state income tax returns for the Partnership, including making the elections
described in Section 8.02. Each Partner shall furnish to the General Partner all pertinent
information in its possession relating to Partnership operations that is necessary to enable such
income tax returns to be prepared and filed.



     8.02 Tax Elections. The following elections shall be made on the appropriate returns
of the Partnership:



     (a) to adopt the calendar year as the Partnership’s fiscal year;



     (b) unless the accrual method is required under the applicable sections of the Code, to adopt
the cash method of accounting and to keep the Partnership’s books and records on the income-tax
method;



     (c) if there shall be a distribution of Partnership property as described in Section 734 of
the Code or if there shall be a transfer of a Partnership interest as described in Section 743 of
the Code, upon written request of any Partner, to elect, pursuant to Section 754 of the Code, to
adjust the basis of Partnership properties;



     (d) to elect to amortize the organizational expenses of the Partnership ratably over a period
of 60 months as permitted by Section 709(b) of the Code; and



     (e) any other election the General Partner may deem appropriate and in the best interests of
the Partners.



No election shall be made by the Partnership or any Partner to be treated as an association taxable
as a corporation or to be excluded from the application of the provisions of Subchapter K of
Chapter 1 of Subtitle A of the Code or any similar provisions of applicable state laws.



 - 18 - 









 








     8.03 Tax Matters Partner. The General Partner shall be the “tax matters partner” of
the Partnership pursuant to Section 6231(a)(7) of the Code. The General Partner shall take such
action as may be necessary to cause each other Partner to become a “notice partner” within the
meaning of Section 6223 of the Code. The General Partner shall inform each other Partner of all
significant matters that may come to its attention in its capacity as tax matters partner by giving
notice thereof within ten Business Days after becoming aware thereof and, within such time, shall
forward to each other Partner copies of all significant written communications it may receive in
such capacity. The General Partner shall not take any action contemplated by Sections 6222 through
6232 of the Code without the consent of a Required Interest. This provision is not intended to
authorize the General Partner to take any action left to the determination of an individual Partner
under Sections 6222 through 6232 of the Code.



ARTICLE IX

BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS




     9.01 Maintenance of Books. The books of account for the Partnership shall be
maintained on a cash basis in accordance with the terms of this Agreement except that the Capital
Accounts of the Partners shall be maintained in accordance with Section 4.04. The calendar
year shall be the accounting year of the Partnership.



     9.02 Financial Statements. Within 120 days after the end of each fiscal year during
the term of the Partnership, the General Partner shall cause each other Partner to be furnished
with an unaudited balance sheet, an income statement, and a statement of changes in Partners’
capital of the Partnership for, or as of the end of, such period. All financial statements shall
be prepared in accordance with accounting principles generally employed for cash-basis records
consistently applied (except as therein noted).



     9.03 Bank Accounts. The General Partner shall establish and maintain one or more
separate accounts for Partnership funds in the Partnership name at such financial institutions as
it may designate. The General Partner may not commingle the Partnership’s funds with other funds
of any Partner.



ARTICLE X

WITHDRAWAL, BANKRUPTCY, REMOVAL, ETC.




     10.01 Withdrawal, Bankruptcy, Etc. of General Partner.



     (a) The General Partner covenants and agrees that it will not withdraw from the Partnership as
the general partner within the meaning of Section 17-602 of the Act. If the
General Partner shall so withdraw from the Partnership in violation of such covenant and
agreement, such withdrawal shall be effective only upon 90 days’ prior notice to all other
Partners.



     (b) The General Partner shall not cease to be a general partner on the occurrence of an event
of the type described in Section 17-402(a)(4) through (10) of the Act, but shall cease to be a
general partner 90 days thereafter. The General Partner shall notify each other Partner that an
event of the type described in Section 17-402(a)(4) through (10) of the Act has occurred (without
regard to the lapse of any time periods therein) with respect to it within five Business Days after
such occurrence.



 - 19 - 









 





     (c) Following any notice pursuant to Section 10.01(a) that the General Partner shall
be withdrawing, or following the occurrence of an event of the type described in Section
17-402(a)(4) through (10) of the Act with respect to the General Partner (without regard to the
lapse of any time periods therein), and unless there shall be one other General Partner remaining,
the greater of the Class A Limited Partner plus a Required Interest of the Class B Limited Partner
or a majority in interest as defined in Internal Revenue Service Procedure 94-46 (or any successor
thereof) by written consent may select a new General Partner, which shall be admitted to the
Partnership as a general partner effective immediately prior to the existing General Partner’s
ceasing to be a general partner with such general partner interest as the Limited Partners making
such selection may specify, but only if such new General Partner shall have made such Capital
Contribution as such Limited Partners may specify and shall have executed and delivered to the
Partnership a document including such new General Partner’s notice address, acceptance of all the
terms and provisions of this Agreement, an agreement to perform and discharge timely all of its
obligations and liabilities hereunder, and a representation and warranty that the representation
and warranties in Section 3.02 are true and correct with respect to such new General
Partner. Notwithstanding the foregoing provisions of this Section 10.01(c), the right to
select such new General Partner shall not exist or be exercised unless the Partnership shall have
received the favorable opinion of the Partnership’s legal counsel or of other legal counsel
acceptable to the Limited Partners making such selection to the effect that such selection and
admission will not result in (i) the loss of limited liability of any Limited Partner (except to
the extent a Limited Partner has consented to become the General Partner) or (ii) in the
Partnership being treated as an association taxable as a corporation for federal income tax
purposes. Notwithstanding the foregoing provisions of this Section 10.01(c), no such new
General Partner shall be admitted (and the existing General Partner shall continue as such) if the
event that permitted the selection of a new General Partner shall have been an event of the type
described in Section 17-402(a)(5) of the Act that with the passage of time would cause the existing
General Partner to become a Bankrupt Partner but, due to the failure of such situation to continue,
such General Partner does not become a Bankrupt Partner.



     10.02 Conversion of Interest. Immediately upon the General Partner’s ceasing to be
General Partner following the admission of a new General Partner pursuant to Section
10.01(c), the former General Partner’s interest in the Partnership as a General Partner shall
be converted into the interest of a Limited Partner in the Partnership having the same economic
rights as specified for the General Partner
herein immediately prior to its ceasing to be a General Partner, and such General Partner
shall automatically and without further action be admitted to the Partnership as a Limited Partner.



ARTICLE XI

DISSOLUTION, LIQUIDATION, AND TERMINATION




     11.01 Dissolution. The Partnership shall be dissolved and its affairs shall be wound
up upon the first to occur of any of the following:



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     (a) the written consent of the General Partner, the Class A Limited Partner and a Required
Interest;



     (b) unless otherwise agreed to by the General Partner, the Class A Limited Partner and a
Required Interest 30 days following the occurrence of the Vesting Date;



     (c) the end of the term of the Partnership as set forth in Section 2.06;



     (d) the General Partner’s ceasing to be the General Partner as described in Section
10.01(b) with no new General Partner having been selected and admitted as provided in
Section 10.01(c); or



     (e) any other event causing dissolution as described in Section 17-801 of the Act (other than
an event described in Section 17-402(a)(4) through (10) of the Act, except as provided in
Sections 10.01(b) and 11.01(d));



it being understood that if an “event of withdrawal of a general partner” (as defined in Section
17-101(3) of the Act) shall occur with respect to the General Partner and at least one other
General Partner shall have been or is about to be admitted pursuant to Section 3.03(b),
10.01(c), or 10.02, the Partnership shall not dissolve but shall continue and the
remaining General Partner shall, and hereby agrees to, carry on the business of the Partnership.



     11.02 Liquidation and Termination. Upon dissolution of the Partnership, unless it is
continued as provided in Section 11.01, the General Partner shall act as liquidator or may
appoint one or more other Persons as liquidator; provided, however, that if the Partnership shall
be dissolved on account of an event of the type described in Section 17-402(a)(4) through (10) of
Act with respect to the General Partner, the liquidator shall be one or more Persons selected in
writing by the Class A Limited Partner and a Required Interest. The liquidator shall proceed
diligently to wind up the affairs of the Partnership and make final distributions as provided
herein, and shall file any amendments to the Certificate as may be required by applicable law. The
costs of liquidation shall be borne as a Partnership expense. Until final distribution, the
liquidator shall continue to manage the Partnership assets with all of the power and authority of
the General Partner. The steps to be accomplished by the liquidator are as follows:



     (a) as promptly as possible after dissolution and again after final liquidation, the
liquidator shall cause a proper accounting to be made by a recognized firm of certified public
accountants of the Partnership’s assets, liabilities, and operations through the last day of the
calendar month in which the dissolution shall have occurred or the final liquidation shall be
completed, as applicable;



     (b) the liquidator shall pay all of the debts and liabilities of the Partnership (including,
without limitation, all expenses incurred in liquidation and any advances made by the General
Partner pursuant to Section 4.03) or otherwise make adequate provision therefor (including,
without limitation, the establishment of a cash escrow fund for contingent liabilities in such
amount and for such term as the liquidator may reasonably determine); and



     (c) all remaining assets of the Partnership shall be distributed to the Partners as follows:



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     (i) the fair market value of the property shall be determined and the capital accounts
of the Partners shall be adjusted to reflect the manner in which the unrealized income,
gain, loss, and deduction inherent in such property (that has not been reflected in the
capital accounts previously) would be allocated among the Partners if there were a taxable
disposition of such property for the fair market value of such property on the Vesting Date;
and




     (ii) the Partnership property shall be distributed among the Partners in accordance
with the positive capital account balances of the Partners, as determined after taking into
account all capital account adjustments for the taxable year of the Partnership during which
the liquidation of the Partnership occurs (other than those made by reason of this clause);
and such distributions shall be made by the end of the taxable year of the Partnership
during which the liquidation of the Partnership occurs (or, if later, within 90 days after
the date of such liquidation). While the General Partner has the right to sell EPE Units as
noted in Section 5.04, and subject to the restrictions set forth in Section
5.05, it is the intent of the General Partner upon liquidation and termination of the
Partnership to distribute EPE Units to the Partners rather than sell the EPE Units and
distribute the cash proceeds of such sale to the Partners.



For purposes of this Section 11.02(c), the “fair market value” of each EPE Unit held by the
Partnership on the Vesting Date shall be equal to the average of the closing sale prices per EPE
Unit for the 20 trading days ending on the Vesting Date (or, if no closing sale price is reported,
the average of the bid and asked prices) as reported in the composite transactions for the
principal United States securities exchange on which the EPE Units are traded or if the EPE Units
are not listed on a national or regional stock exchange, as reported by The NASDAQ National Market.
All distributions in kind to the Partners shall be made subject to the liability of each
distributee for costs, expenses, and liabilities theretofore incurred or for which the Partnership
shall have committed prior to the date of termination and such costs, expenses, and liabilities
shall be allocated to such distributee pursuant to this Section 11.02. The distribution of
property to a Partner in accordance with the provisions of this Section 11.02 shall
constitute a complete return to the Partner of its Capital Contributions and a complete
distribution to the Partner of its interest in the Partnership and all the Partnership’s property
and shall constitute a
compromise to which all Partners have consented within the meaning of Section 17-502(b) of the Act.



     11.03 Cancellation of Certificate. Upon completion of the distribution of Partnership
assets as provided herein, the Partnership shall be terminated, and the General Partner (or, if
there shall be no General Partner, the Limited Partners) shall cause the cancellation of the
Certificate and any other filings made pursuant to Section 2.05 and shall take such other
actions as may be necessary to terminate the Partnership.



ARTICLE XII

GENERAL PROVISIONS




     12.01 Offset. In the event that any sum is payable to any Partner pursuant to this
Agreement, any amounts owed by such Partner to the Partnership shall be deducted from said sum
before payment to said Partner.



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     12.02 Notices. All notices or requests or consents provided for or permitted to be
given pursuant to this Agreement must be in writing and must be given (a) by depositing same in the
United States mail, addressed to the Person to be notified, postpaid, and registered or certified
with return receipt requested or (b) by delivering such notice by courier or in person to such
party. Notices given or served pursuant hereto shall be effective two Business Days after such
deposit, or upon receipt if delivered in person to the person to be notified. All notices to be
sent to a Partner shall be sent to or made at the address given on the Power of Attorney executed
by the Partner and delivered to the General Partner on the date hereof or in the instrument
described in Section 3.03(c), 3.04, or 10.01(c), or such other address as
such Partner may specify by notice to the General Partner. Any notice to the Partnership shall be
given to the General Partner.



     12.03 Entire Agreement; Supersedure. This Agreement constitutes the entire agreement
of the Partners relating to the matters contained herein and supersedes all prior contracts or
agreements, whether oral or written, among the parties hereto with respect to such matters.



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



     12.05 Amendment or Modification. This Agreement may be amended or modified from time
to time only by a written instrument executed by the General Partner; provided, however, that (a)
the vesting and distribution provisions of this Agreement may be amended or modified only by a
written instrument executed by the General Partner, the Class A Limited Partner and a Required
Interest, and (b) no amendment or modification reducing a Partner’s Sharing Points (other than to
reflect changes otherwise provided hereby) or increasing its duties or adversely affecting its
limited liability shall be effective without such Partner’s consent.



     12.06 Binding Effect; Joinder of Additional Parties. Subject to the restrictions on
Dispositions set forth herein, this Agreement shall be binding upon and shall inure to the benefit
of the Partners, as well as the respective heirs, legal representatives, successors, and assigns of
such Partners.



     12.07 Construction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICTS-OF-LAW RULE OR PRINCIPLE THAT MIGHT
REFER THE GOVERNANCE OR CONSTRUCTION OF THIS AGREEMENT TO THE LAWS OF ANOTHER JURISDICTION. The
headings in this Agreement are inserted for convenience and identification only and are not
intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or
any provision hereof. Whenever the context requires, the gender of all words used in this
Agreement shall include the masculine, feminine, and neuter. All references to Articles and
Sections refer to articles and sections of this Agreement. All sums and amounts payable or to be
payable pursuant to the provisions of this Agreement shall be payable



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in coin or currency of the
United States of America that, at the time of payment, is legal tender for the payment of public
and private debts in the United States of America. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be held invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provision to other Persons or
circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted
by law.



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



     12.09 Indemnification. To the fullest extent permitted by law, each Partner shall
indemnify the Partnership and each other Partner and hold them harmless from and against all
losses, costs, liabilities, damages,
and expenses (including, without limitation, costs of suit and attorney’s fees) they may incur
on account of any breach by such indemnifying Partner of this Agreement.



     12.10 Waiver of Certain Rights. Each Partner irrevocably waives any right it might
have to maintain any action for dissolution of the Partnership or to maintain any action for
partition of the property of the Partnership.



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



     12.12 Dispute Resolution. (a) If the General Partner and one or more Limited Partners
are unable to resolve any controversy, dispute, claim or other matter in question arising out of,
or relating to, this Agreement, any provision hereof, the alleged breach hereof, or in any way
relating to the subject matter of this Agreement, or the relationship between the parties created
by this Agreement, including questions concerning the scope and applicability of this Section
12.12, whether sounding in contract, tort or otherwise, at law or in equity, under state or
federal law, whether provided by statute or common law, for damages or any other relief (any such
controversy, dispute, claim or other matter in question, a “Dispute”), on or before the
30th day following the receipt by the General Partner or such Limited Partners of written notice of
such Dispute from the other party, which notice describes in reasonable detail the nature of the
Dispute and the facts and circumstances relating thereto, the General Partner or such Limited
Partners may, by delivery of written notice to the other party, require that a representative of
the General Partner and of such Limited Partners meet at a mutually agreeable time and place in an
attempt to resolve such Dispute. Such meeting shall take place on or before the 15th day following
the date of the notice requiring such meeting, and if the Dispute has not been resolved within 15
days following such meeting, the General Partner or such Limited Partners may cause such Dispute to
be resolved by binding arbitration in Houston, Texas, by submitting such Dispute for arbitration
within 30 days following the expiration of such 15-day period. This agreement to arbitrate shall
be specifically enforceable against the parties.



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     (b) It is the intention of the parties that the arbitration shall be governed by and conducted
pursuant to the Federal Arbitration Act, as such Act is modified by this Section 12.12. If
it is determined the Federal Arbitration Act is not applicable to this Agreement (e.g., this
Agreement does not evidence a transaction involving interstate commerce), this agreement to
arbitrate shall nevertheless be enforceable pursuant to applicable State law. While the
arbitrators may refer to the Commercial Arbitration Rules of the American Arbitration Association
(the “Rules”) for guidance with respect to procedural matters, the arbitration proceeding
shall not be administered by the American Arbitration Association but instead shall be
self-administered by the parties until the arbitrators are selected and then the proceeding shall
be administered by the arbitrators.



     (c) The validity, construction, and interpretation of this agreement to arbitrate, and all
procedural aspects of the arbitration conducted pursuant to this agreement to arbitrate, including
but not limited to, the determination of the issues that are subject to arbitration (i.e.,
arbitrability), the scope of the arbitrable issues, allegations of “fraud in the inducement” to
enter into this Agreement or this arbitration provision, allegations of waiver, laches, delay or
other defenses to arbitrability, and the rules governing the conduct of the arbitration (including
the time for filing an answer, the time for the filing of counterclaims, the times for amending the
pleadings, the specificity of the pleadings, the extent and scope of discovery, the issuance of
subpoenas, the times for the designation of experts, whether the arbitration is to be stayed
pending resolution of related litigation involving third parties not bound by this arbitration
agreement, the receipt of evidence, and the like), shall be decided by the arbitrators.



     (d) The rules of arbitration of the Federal Arbitration Act, as modified by this Agreement,
shall govern procedural aspects of the arbitration; to the extent the Federal Arbitration Act as
modified by this Agreement does not address a procedural issue, the arbitrators may refer for
guidance to the Commercial Arbitration Rules then in effect with the American Arbitration
Association. The arbitrators may refer for guidance to the Federal Rules of Civil Procedure, the
Federal Rules of Civil Evidence, and the federal law with respect to the discovery process,
applicable legal privileges, and admissible evidence. In deciding the substance of the parties’
Dispute, the arbitrators shall refer to the substantive laws of the State of Delaware for guidance
(excluding Delaware’s conflict-of-law rules or principles that might call for the application of
the law of another jurisdiction); provided, however, IT IS EXPRESSLY AGREED THAT NOTWITHSTANDING
ANY OTHER PROVISION IN THIS SECTION 12.12 TO THE CONTRARY, THE ARBITRATORS SHALL HAVE
ABSOLUTELY NO AUTHORITY TO AWARD CONSEQUENTIAL DAMAGES (SUCH AS LOSS OF PROFIT), TREBLE, EXEMPLARY
OR PUNITIVE DAMAGES OF ANY TYPE UNDER ANY CIRCUMSTANCES REGARDLESS OF WHETHER SUCH DAMAGES MAY BE
AVAILABLE UNDER DELAWARE LAW, THE LAW OF ANY OTHER STATE, OR FEDERAL LAW, OR UNDER THE FEDERAL
ARBITRATION ACT, OR UNDER THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
The arbitrators shall have the authority to assess the costs and expenses of the arbitration
proceeding (including the arbitrators’ fees and expenses) against either or both parties. However,
each party shall bear its own attorneys fees and the arbitrators shall have no authority to award
attorneys fees.



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     (e) When a Dispute has been submitted for arbitration, within 30 days of such submission, the
General Partner will choose an arbitrator, and such Limited Partners will choose an arbitrator.
The two arbitrators shall select a third arbitrator, failing agreement on which within 90 days of
the original notice, the General Partner and such Limited Partners (or either of them) shall apply
to any United States District Judge for the Southern District of Texas, who shall appoint the third
arbitrator. While the third arbitrator shall be neutral, the two party-appointed arbitrators are
not required to be neutral and it shall not be grounds for removal of either of the two
party-appointed arbitrators or for vacating the arbitrators’ award that either of such arbitrators
has past or present minimal relationships with the party that appointed such arbitrator. Evident
partiality on the part of an arbitrator exists only where the circumstances are such that a
reasonable person would have to conclude there in fact existed actual bias and a mere appearance or
impression of bias will not constitute evident partiality or otherwise disqualify an
arbitrator. Minimal or trivial past or present relationships between the neutral arbitrator
and the party selecting such arbitrator or any of the other arbitrators, or the failure to disclose
such minimal or trivial past or present relationships, will not by themselves constitute evident
partiality or otherwise disqualify any arbitrator. Upon selection of the third arbitrator, each of
the three arbitrators shall agree in writing to abide faithfully by the terms of this agreement to
arbitrate. The three arbitrators shall make all of their decisions by majority vote. If one of
the party-appointed arbitrators refuses to participate in the proceedings or refuses to vote, the
decision of the other two arbitrators shall be binding. If an arbitrator dies or becomes
physically incapacitated and is unable to fulfill his or her duties as an arbitrator, the
arbitration proceeding shall continue with a substitute arbitrator selected as follows: if the
incapacitated arbitrator is a party-appointed arbitrator, the party shall promptly select a new
arbitrator, and if the incapacitated arbitrator is the neutral arbitrator, the two-party appointed
arbitrators shall select a substitute neutral arbitrator, failing agreement on which the General
Partner and such Limited Partners (or either of them) shall apply to any United States District
Judge for the Southern District of Texas, who shall appoint the substitute neutral arbitrator.



     (f) The final hearing shall be conducted within 120 days of the selection of the third
arbitrator. The final hearing shall not exceed ten working days, with each party to be granted
one-half of the allocated time to present its case to the arbitrators. There shall be a transcript
of the hearing before the arbitrators. The arbitrators shall render their ultimate decision within
20 days of the completion of the final hearing completely resolving all of the Disputes between the
parties that are the subject of the arbitration proceeding. The arbitrators’ ultimate decision
after final hearing shall be in writing, but shall be as brief as possible, and the arbitrators
shall assign their reasons for their ultimate decision. In the case the arbitrators award any
monetary damages in favor of either party, the arbitrators shall certify in their award that they
have not included any treble, exemplary or punitive damages.



     (g) The arbitrators’ award shall, as between the parties to this Agreement and those in
privity with them, be final and entitled to all of the protections and benefits of a final
judgment, e.g., res judicata (claim preclusion) and collateral estoppel (issue preclusion), as to
all Disputes, including compulsory counterclaims, that were or could have been presented to the
arbitrators. The arbitrators’ award shall not be reviewable by or appealable to any court, except
to the extent permitted by the Federal Arbitration Act.



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     (h) It is the intent of the parties that the arbitration proceeding shall be conducted
expeditiously, without initial recourse to the courts and without interlocutory appeals of the
arbitrators’ decisions to the courts. However, if a party refuses to honor its obligations under
this agreement to arbitrate, the other party may obtain appropriate relief compelling arbitration
in any court having jurisdiction over the parties; the order compelling arbitration shall require
that the arbitration proceedings take place in Houston, Texas, as specified above. The parties may
apply to any court for orders requiring witnesses to obey subpoenas issued by the arbitrators.
Moreover, any and all of the arbitrators’ orders and decisions may be enforced if necessary by any
court. The arbitrators’ award may be confirmed in, and judgment upon the award entered by, any
federal or State court having jurisdiction over the parties.



     (i) To the fullest extent permitted by law, this arbitration proceeding and the arbitrators
award shall be maintained in confidence by the parties. However, a violation of this
covenant shall not affect the enforceability of this arbitration agreement or of the
arbitrators’ award.



     (j) A party’s breach of this Agreement shall not affect this agreement to arbitrate.
Moreover, the parties’ obligations under this arbitration provision are enforceable even after this
Agreement has terminated. The invalidity or unenforceability of any provision of this arbitration
agreement shall not affect the validity or enforceability of the parties’ obligation to submit
their Disputes to binding arbitration or the other provisions of this agreement to arbitrate.



     12.13 No Effect on Employment Relationship. Nothing in this Agreement shall confer
upon any employee of the General Partner or any Affiliate thereof any right to continued employment
nor shall it interfere in any way with the right of the General Partner or any of its Affiliates to
terminate the employment of any employee at any time.



     12.14 Legal Representation. This Agreement and related documents have been prepared
by Andrews Kurth LLP, as counsel for the General Partner, and not as counsel for any other Partner
or the Partnership. Each party other than the General Partner has been advised to seek independent
counsel in connection with this Agreement and the related documents.



[Signature Pages to Follow.]




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     IN WITNESS WHEREOF, the Partners have executed this Agreement as of the date first set forth
above.



	 	 	 	 	 	 	 	 	 
	GENERAL PARTNER:	 	 	 	EPCO, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Richard H. Bachmann
 

	 	 
	 	 	 	 	Richard H. Bachmann	 	 
	 	 	 	 	Executive Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	CLASS A LIMITED PARTNER:	 	 	 	DUNCAN FAMILY INTERESTS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Mary S. Stawikey
 

Mary S. Stawikey
	 	 
	 

	 	 	 	 	 	Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	CLASS B LIMITED PARTNER:	 	 	 	The Class B
Limited Partner initially admitted as a Class B Limited Partner
of the Partnership, pursuant to Powers of Attorney executed in favor
of, and granted and delivered to the General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: EPCO, INC.	 	 
	 	 	 	 	(As attorney-in-fact
for the Class B Limited Partner pursuant to powers of attorney)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Richard H. Bachmann	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Richard H. Bachmann	 	 
	 

	 	 	 	 	 	Executive Vice President	 	 






Agreement of Limited Partnership of EPE Unit II, L.P.





 









 








Exhibit A




FORM OF POWER OF ATTORNEY




For Executing Agreement of Limited Partnership of EPE Unit II, L.P.




     Know all by these presents, that the undersigned hereby constitutes and appoints EPCO, Inc.
and its authorized representatives the undersigned’s true and lawful attorney-in-fact to:




	 	(1)	 	execute for and on behalf of the undersigned as a limited partner thereunder
that certain Agreement of Limited Partnership of EPE Unit II, L.P. (the
“Partnership Agreement”);
	 
	 	(2)	 	take any other action of any type whatsoever in connection with the foregoing
that, in the opinion of each such attorney-in-fact, may be of benefit to, in the best
interest of, or legally required of the undersigned, it being understood that the
documents executed by the attorney-in-fact on behalf of the undersigned pursuant to
this Power of Attorney shall be in such form and shall contain such terms and
conditions as the attorney-in-fact may approve in the attorney-in-fact’s discretion.





     The undersigned hereby grants to each attorney-in-fact full power and authority to do and
perform all and every act and thing whatsoever requisite, necessary or proper to be done in the
exercise of any of the rights and powers herein granted, as fully to all intents and purposes as
the undersigned might or could do if personally present, with full power of substitution or
revocation, hereby ratifying and confirming all that the attorney-in-fact, or the attorney-in-facts
substitute or substitutes, shall lawfully do or cause to be done by virtue of this Power of
Attorney and the rights and powers herein granted.



     The undersigned acknowledges and agrees by execution of this Power of Attorney that the
undersigned’s initial Sharing Points (as defined in the Partnership Agreement) under the
Partnership Agreement equal                     , which represents ___% of the total initial Sharing Points
granted by the General Partner pursuant to the Partnership Agreement.



     IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of the
date written below.



	 	 	 	 	 
	 

	 	 

Signature
	 	 
	 
	 	 	 	 
	 

	 	 

Type or Print Name
	 	 
	 
	 	 	 	 
	 

	 	 

Date
	 	 






 









 





FORM OF POWER OF ATTORNEY




For Executing Agreement of Limited Partnership of EPE Unit II, L.P.




     Know all by these presents, that the undersigned hereby constitutes and appoints EPCO, Inc.
and its authorized representatives the undersigned’s true and lawful attorney-in-fact to:




	 	(1)	 	execute for and on behalf of the undersigned as a limited partner thereunder
that certain Agreement of Limited Partnership of EPE Unit II, L.P. (the
“Partnership Agreement”);
	 
	 	(2)	 	take any other action of any type whatsoever in connection with the foregoing
that, in the opinion of each such attorney-in-fact, may be of benefit to, in the best
interest of, or legally required of the undersigned, it being understood that the
documents executed by the attorney-in-fact on behalf of the undersigned pursuant to
this Power of Attorney shall be in such form and shall contain such terms and
conditions as the attorney-in-fact may approve in the attorney-in-fact’s discretion.





     The undersigned hereby grants to each attorney-in-fact full power and authority to do and
perform all and every act and thing whatsoever requisite, necessary or proper to be done in the
exercise of any of the rights and powers herein granted, as fully to all intents and purposes as
the undersigned might or could do if personally present, with full power of substitution or
revocation, hereby ratifying and confirming all that the attorney-in-fact, or the attorney-in-facts
substitute or substitutes, shall lawfully do or cause to be done by virtue of this Power of
Attorney and the rights and powers herein granted.



     The undersigned acknowledges and agrees by execution of this Power of Attorney that the
undersigned’s initial Sharing Points (as defined in the Partnership Agreement) under the
Partnership Agreement equal 1,000, which represents 100% of the total initial Sharing Points
granted by the General Partner pursuant to the Partnership Agreement.



     IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of the
date written below.



	 	 	 	 	 
	 	 	 
	 	                                              /s/ Ralph S. Cunningham
 	 
	 	Signature 	 
	 	 	 
	 
	 	 	 
	 	 Dr. Ralph S. Cunningham
 	 
	 	Type or Print Name 	 
	 	 	 
	 
	 	 	 
	 	Date December 5, 2006	 




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